Asanga Welikala, courtesy of CONSTITUTIONNET, where the title is “Sri Lanka after the Elections: Challenges and Opportunities for Further Reform”
On 17th August 2015 Sri Lankans elected a new Parliament with a mandate for a series of far-reaching constitutional reforms, which if implemented successfully, could extensively change the institutional form of the Sri Lankan state. In the presidential election of 8th January 2015, the sitting President Mahinda Rajapaksa had suffered a shock defeat by the common opposition candidate, Maithripala Sirisena. The common opposition had fought that election with the promise of abolishing or substantially reducing the powers of the executive presidency and re-establishing an institutional framework for de-politicisation and good governance. The reforms that focused on limiting presidential powers and establishing the Constitutional Council along with various independent commissions were enacted in April by the Nineteenth Amendment to the Constitution, a democratic milestone, even though it fell short of a complete abolition of the executive presidency. By returning the minority government headed by President Sirisena and Prime Minister Ranil Wickremesinghe (which had served since January) as the largest party in the legislature in the parliamentary election, the electorate endorsed the Nineteenth Amendment and mandated the reform proposals outlined in the United National Front for Good Governance (UNFGG) manifesto. Sri Lanka’s constitutional reform process therefore looks set to continue for the foreseeable future. This raises a number of substantive and process challenges that are well illustrated by the two major constitutional restructurings undertaken by the last Parliament in the first and last six months of its life.
From ethnic chauvinism to democratic maturity? … President Rajapaksa’s government won the war against the armed secessionists of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009. In mobilising public support for the war effort, Rajapaksa relied heavily on the ideology of Sinhala-Buddhist nationalism. He demonstrated this support among the majority Sinhala-Buddhist community by a political strategy that included a relentless succession of local and provincial elections. This strategy not only demonstrated his popularity but also threw the opposition into disarray. The opposition did not have the access to the state resources that, conversely, Rajapaksa unashamedly used to his own advantage in these elections. The successful conclusion of the war and the repeated election victories persuaded the regime’s ideologues that they had a political and moral authority to recreate the state in the image of the monarchical Sinhala-Buddhist state. On winning the presidential election and extra-legally throwing his main challenger in jail in January 2010, Rajapaksa’s United People’s Freedom Alliance (UPFA) also won the parliamentary election in April 2010. He then proffered ministerial offices and other corrupt incentives to further induce the crossover of opposition MPs to secure a two-thirds majority in the legislature. This was used in September 2010 to pass the Eighteenth Amendment to the Constitution, which abolished the two-term limit on presidential office, removed key procedural limits on presidential powers, and depleted the independence of the commissions overseeing the public service, the judiciary, the police, and elections. The Amendment was passed within a period of ten days, with a pliant Supreme Court acquiescing with the government that it presented no threat to constitutional democracy. While Rajapaksa’s victories in the 2010 elections were unsurprising, what is noteworthy was that he said nothing about the changes he was to introduce by the Eighteenth Amendment during those campaigns. There was therefore not only the whiff of corruption but also an element of stealth in the way that he arrogated powers around the presidency. Nevertheless, there was no doubt that within the Sinhala-Buddhist community, he remained the single most popular figure of his generation, and that his brand of aggressive nationalism and developmental authoritarianism enjoyed a certain majoritarian imprimatur.
The war victory and the nationalist hysteria of 2009-10 induced not only hubris but also complacency within the regime that they could get away with anything in perpetuity. The Eighteenth Amendment ensured that there were no institutional channels to check the increasing authoritarianism and the even more extensive corruption of the regime. This was the basis for the rejuvenation of the common opposition by the second half of 2014, of which the figurehead was Sirisena, the General Secretary of Rajapaksa’s own party. The civil society support for the common opposition was spearheaded not by liberal NGOs but by a senior monk, the Ven. Maduluwawe Sobhitha Thera and his National Movement for Social Justice (NMSJ). The anti-Rajapaksa forces’ focus on good governance and constitutional reform offered a radically different vision of the Sri Lankan state. This visiontreated the polity as a community of republican deliberation rather than antagonistic vote blocs of uncritical ethnic tribalism. It was reconciliatory towards the minorities and included them as stakeholders in the new vision of the Sri Lankan nation-state, but while offering more devolution, circumscribed concessions to Tamil aspirations by maintaining a commitment to the unitary state. This is a strategic tightrope-walk between the Sinhala-Buddhist attachment to the unitary state and the Tamil desire for federal autonomy in the north and east of the island.
Rather than accept defeat and retire gracefully, Rajapaksa and his acolytes tried to use the second election of 2015 as a comeback attempt, by winning the election and forcing Sirisena to appoint him as Prime Minister. He offered exactly the same package of Sinhala-Buddhist chauvinism and fear-mongering conspiracy theories of external threats and internal subversion by the minorities on which he had lost the presidential election. That this too was defeated denotes a new democratic maturity within the Sri Lankan electorate and consolidates the political environment for reforms to come.
It is important to stress this new political zeitgeist because it creates not only a set of specific – and sometimes conflicting – expectations about the substance of reform within Sri Lanka’s plural society, but also expectations as to process. Rajapaksa won the 2010 presidential election with 6,015,934 votes or 57.88% of the total vote, against his challenger Sarath Fonseka’s 4,173,185 or 40.15%, which was a massive majority of nearly two million votes. In 2015, he obtained 5,568,090 votes or 47.58% to Sirisena’s 6,217,162 or 51.28% of the total vote. The reduction of over 10% of the total vote in his support is significant. Equally importantly, in the parliamentary election of 2015, the UNFGG of Prime Minister Wickremesinghe emerged as the single largest party with 106 seats and 5,098,916 votes or 45.66% of the total vote. On an upward swing of 16.32%, this was a gain of 46 seats from the last parliamentary election in 2010, where it won 60 seats and 29.34% of total votes. The UPFA won 95 seats, with 4,732,664 votes or 42.38% of the total vote, a loss of 49 seats from the last election where it had won 144 seats or 60.33% of the total vote. The UPFA therefore lost 49 seats and 17.95% of its total vote between 2010 and 2015, whereas Wickremesinghe’s party has seen a dramatic surge in support, increasing its popular vote from 2,357,057 in 2010 to 5,098,916 in 2015, and a gain of 46 seats. These figures demonstrate the comprehensiveness of the two successive mandates for reform, and against the Rajapaksa vision, that the electorate has registered in 2015.
The next phase of constitutional reform: So what then has the UNFGG proposed by way of further reforms? The manifesto promises a new constitution that will entrench the principles of good governance and democracy, reinforce the constitutional role of Parliament, improve local representation and devolve powers to the maximum extent possible within the unitary state, and strengthen equality between individuals and communities. It reinforces the de-politicisation measures introduced by the Nineteenth Amendment by proposing that the independent institutions would be established as a ‘fourth pillar’ of government. Many of the measures that were in the minority government’s 100-day programme, but could not be implemented, are included in the manifesto, most significantly the ‘advice clause’: i.e., the provision whereby the President acts only on the advice of the Prime Minister and the Cabinet and not independently at his own discretion. This effectively abolishes executive presidentialism and establishes a parliamentary executive accountable to the legislature. A new bill of fundamental rights is proposed, as is a new Constitutional Court to deal with constitutional matters. Parliament’s scrutinising capacity is to be strengthened with the establishment of a new system of oversight committees. The Constitutional Council envisaged under the Nineteenth Amendment, which recommends presidential appointments to the independent commissions and approves presidential appointments to high posts such as superior court judges, is to be renamed the State Council and enlarged with the addition of civil society representatives to its membership. The reformulation of the committee system by which committee chairs will be opposition or backbench MPs and other new institutions such as Development Coordination Boards for every district headed by a local MP promise to involve the opposition in governance and thereby create a more consensual culture of politics. Legislation to improve the freedom of information and the national audit will be introduced, together with a code of ethics for MPs and a reform of the law governing the declaration of assets and liabilities of elected office-holders. The preferential voting system is to be abolished and a new mixed electoral system combining both first-past-the-post and proportional representation elements is to be introduced.
Devolution and power-sharing: Much of this is inherently desirable, long overdue, and supported by a wide societal consensus. As ever, however, the biggest challenge will be the question of devolution and power-sharing. It is significant that the UNFGG manifesto reiterates an explicit commitment to maintaining the unitary state, even while promising maximum devolution within its dictates. This was a reassurance to the Sinhala nationalists and a strategic bulwark against charges from the Rajapaksa camp that it would be excessively generous towards the Tamils given both Sirisena’s and Wickremesinghe’s reliance on minority votes for their respective mandates. However, this reproduces the very dichotomy as between the federal and unitary visions of the Sri Lankan state that has thwarted a resolution of the power-sharing issue since independence. In the Tamil-majority areas of the north and east, the Tamil National Alliance (TNA) swept the poll, increasing their seats from 14 to 16. The moderates in the TNA successfully withstood a strong challenge from hard-line nationalists, but they renewed their mandate to negotiate a federal settlement with the government. If the great reform moment produced by the two 2015 elections is to finally resolve this issue, then both sides will have to find deeper conceptual resources, and draw upon comparative multinational models of constitutional accommodation, with which to transcend the incommensurable nature of the formalistic federal versus unitary dichotomy.
The need for transparency and public participation in the reform process: Sri Lanka has shown that it has a democratic culture capable of self-correction, but that reform requires the building of public support and confidence at every stage. This seems to suggest that an incrementalist approach, which builds gradually upon each successive step, is a better and more durable way of restructuring the state than ‘big bang’ solutions, which have the potential to inflame the insecurities of the majority and drive them into the embrace of spoilers like Rajapaksa and his cronies. This is perhaps one of the key lessons of the failure of the Norwegian-facilitated peace process during Wickremesinghe’s last government in 2000-4. It also underscores the critical importance of public engagement with reform ideas and participation in the process. The shambolic nature of the process adopted in the enactment of the Nineteenth Amendment might be excused due to the difficulties of a minority government trying to work with a recalcitrant UPFA parliamentary majority. No such defence would be available in the new Parliament and both government and civil society need to ensure transparency and information with regard to reform options. In particular, it is imperative that the reform-sceptic half of the Sinhala-Buddhist community is not left to be preyed upon by Rajapaksa-type political entrepreneurs, but rather fully engaged and constantly reminded of the pluralistic and tolerant traditions that inhere within its own culture and history. Genuine support for devolution and power-sharing can only be broadened and deepened this way. If the process is well-designed and implemented, then there is great hope that Sri Lanka could at last have a democratic constitutional settlement that would guarantee constitutionalism and bring its peoples together, and in this way unleash the tremendous economic and political potential it has always had but never realised.
Dr Asanga Welikala is Lecturer in Public Law at Edinburgh Law School and Associate Director of the Edinburgh Centre for Constitutional Law. He is also a Senior Research Associate of the Centre for Policy Alternatives (CPA), Sri Lanka.