Hostname: page-component-5f745c7db-6bmsf Total loading time: 0 Render date: 2025-01-06T07:24:26.953Z Has data issue: true hasContentIssue false
  • English
  • Français

Constitutional Struggle in Sri Lanka

Published online by Cambridge University Press:  01 January 2025

Mario Gomez Open the ORCID record for Mario Gomez [Opens in a new window]
Mario Gomez*
Affiliation:
International Centre for Ethnic Studies, Sri Lanka
Get access Rights & Permissions [Opens in a new window]

Abstract

Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past 70 years. For 25 years after independence, the country functioned as a constitutional democracy with regular elections and power alternating between the two main political parties. Since 1972, political elites have used constitution-making as a method of consolidating their hold on political power. In 2015, the 19th Amendment to the Constitution trimmed the powers of the President and provided for a balanced form of power-sharing between executive and legislature. It enhanced the independence of the courts and the fourth-branch institutions. However, these gains were reversed by the 20th Amendment, passed in 2020. Against the backdrop of an intense competition for political power and the manipulation of constitutions to retain power, this contribution discusses three recurring sites of constitutional struggle and debate in Sri Lanka: struggles over presidentialism, power-sharing and the place of Buddhism in the constitution. This paper contends that a return to constitutional democracy will require, at a minimum, a revisitation of the first two issues, even if the third — the place of Buddhism — remains untouched. The paper concludes by arguing that while all three constitutional struggles have a different historical trajectory and different dynamics, they are all part of a larger struggle — the struggle to transform Sri Lanka from a Buddhist-majoritarian state into a plural, multi-ethnic and multi-religious society in law and in practice.

Type
Special Issue (Part 1): Constitutional Struggles in Asia
Information
Federal Law Review , Volume 50 , Issue 2: Special Issue (Part 1): Constitutional Struggles in Asia , June 2022 , pp. 174 - 191
Copyright
Copyright © 2022 The Author(s)

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Mario Gomez, ‘Constitutional Change and Institutional Resilience in Sri Lanka’ in Henning Glaser (ed), Shifting to a New Constitutionalism: Changing Political Orders in Asia (Nomos, forthcoming).

2. For writing on the ethnic war that lasted between 1983 and 2009, see S J Tambiah, Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy (Chicago University Press, 1986); John Richardson, Paradise Poisoned: Learning about Conflict, Terrorism and Development from Sri Lanka’s Civil Wars (International Centre for Ethnic Studies, 2005); Neil De Votta, Blowback: Linguistic Nationalism, Institutional Decay, and Ethnic Conflict in Sri Lanka (Stanford University Press, 2004); Nira Wickramasinghe, Sri Lanka in the Modern Age: A History of Contested Identities (University of Hawaii Press, 2006); Rajan Hoole et al, The Broken Palmyra: The Tamil Crisis in Sri Lanka: An Inside Account (Sri Lanka Studies Institute, 1990); Mario Gomez, ‘Keeping Rights Alive: Reform and Reconciliation in Post-War Sri Lanka’ [2011] 17 Asian Yearbook of International Law 117; Citizens’ Commission on the Expulsion of Muslims from the Northern Province by the LTTE in October 1990, The Quest for Redemption: The Story of the Northern Muslims (Final Report, 2012) and Paul Sieghart, Sri Lanka: A Mounting Tragedy of Errors (Report, March 1984).

3. Benjamin Schonthal, ‘Buddhism and the Constitution: The Historiography and Postcolonial Politics of Section 6’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Centre for Policy Alternatives, 2012) 202.

4. See also Dian A H Shah, Andrew Harding and Jonathan Liljeblad, ‘Symposium on Constitutional Struggles in Asia: Introduction’, I•CONnect: Blog of the International Journal of Constitutional Law (Blog Post, 19 February 2021) http://www.iconnectblog.com/2021/02/symposium-on-constitutional-struggles-in-asia/.

5. Public Representations Committee on Constitutional Reform, Report on Public Representations on Constitutional Reform (Report, May 2016) http://constitutionnet.org/sites/default/files/sri_lanka_prc_report-english-final.pdf.

6. The Steering Committee, The Constitutional Assembly of Sir Lanka (Interim Report, 21 September 2017) https://constitutionnet.org/sites/default/files/2017-09/Interim%20Report%20of%20the%20Steering%20Commmittee%20of%20the%20Constitutional%20Assembly%20of%20Sri%20Lanka_21%20September%202017.pdf.

7. For a discussion of some of the proposals on power-sharing in the Steering Committee’s report and the attempt to use constitutional ambiguity as a compromise, see Sanjayan Rajasingham, ‘Federal or Unitary? The Power-Sharing Debate in Sri Lanka’ (2019) 108(6) The Round Table: Commonwealth Journal of International Affairs 653. For the divisions within the Steering Committee on presidentialism, see Kalana Senaratne, ‘The Executive and the Constitutional Reforms Process in Sri Lanka’ (2019) 108(6) The Round Table: Commonwealth Journal of International Affairs 625.

8. Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Centre for Policy Alternatives, 2012); Asanga Welikala (ed), Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Centre for Policy Alternatives, 2015) (‘Reforming Sri Lankan Presidentialism’).

9. J R Jayewardene, ‘Keynote Address to the Ceylon Association for the Advancement of Science’ (Speech, 14 December 1966), extracted in Welikala, Reforming Sri Lankan Presidentialism (n 9) 3–4.

10. See above n 3.

11. Mario Gomez, ‘Prosecuting Religious Violence in Sri Lanka’ in Li-ann Thio and Jaclyn L Neo (eds) Religious Offences in Common Law Asia Colonial Legacies: Constitutional Rights and Contemporary Practice (Hart, 2021) 245–80.

12. C R de Silva, ‘The Constitution of the Second Republic of Sri Lanka (1978) and its Significance’ (1979) 17(2) Journal of Commonwealth and Comparative Politics 192–209.

13. For a discussion of how the Sinhala–Buddhist monarchy and heritage have influenced the exercise of presidential powers, see Welikala, Reforming Sri Lankan Presidentialism (n 9) 498–655.

14. 1978 Constitution art 34.

15. Mario Gomez, ‘Prosecuting Religious Violence in Sri Lanka’ in Li-ann Thio and Jaclyn L Neo (eds) Religious Offences in Common Law Asia Colonial Legacies: Constitutional Rights and Contemporary Practice (Hart, 2021) 245–80.

16. Human Rights Commission of Sri Lanka, ‘Granting of a Presidential Pardon to Former Army Corporal Sunil Ratnayake’ (March 29, 2020) http://www.hrcsl.lk/wp-content/uploads/2020/02/Granting-of-a-Presidential-Pardon-to-Former-ArmyCorporal-Sunil-Ratnayake.pdf and Human Rights Watch, ‘Open Wounds and Mounting Dangers: Blocking Accountability for Grave Abuses in Sri Lanka’ (2021) 70–73.

17. See also Dinusha Panditaratne and Pradeep Ratnam (eds), The Draft Constitution of Sri Lanka: Critical Aspects (Law and Society Trust, 1998).

18. Ministry of Justice and Constitutional Affairs, Draft Provisions of the Constitution containing the Proposals of the Government of Sri Lanka relating to Devolution of Power (1996).

19. Twentieth Amendment to the Constitution: A Bill to Amend the Constitution of the Democratic Socialist Republic of Sri Lanka 2018 (Sri Lanka).

20. Supreme Court Special Determination No 29 of 2018, Parliamentary Hansard, 9 October 2018, https://www.parliament.lk/uploads/documents/hansard/1539318304018501.pdf (Supreme Court of Sri Lanka).

21. See Nihal Jayawickrama, ‘The 20th Amendment–A Flawed Determination?’, on file with the author. See also Jayampathy Wickramaratne, Fundamental Rights in Sri Lanka (Stamford Lake Publication, 3rd ed, 2021) 90–91, who takes a similar view.

22. Mario Gomez, ‘The Courts Respond to Executive Tyranny in Sri Lanka’, Blog of International Journal of Constitutional Law (blog, 24 January 2019) http://www.iconnectblog.com/2019/01/the-courts-respond-to-executive-tyranny-in-sri-lanka.

23. Right to Information Act (RTI Act), No 12 of 2016; see Mario Gomez, ‘The Right to Information and Transformative Development Outcomes’ (2019) 12(3) Law and Development Review, 837. Laws establishing an Office on Missing Persons and an Office on Reparations were also passed during this period.

24. See Mario Gomez, ‘Drifting Between Democracy and Despotism in Sri Lanka’, International Journal of Constitutional Law Blog (blog, 20 February 2021) http://www.iconnectblog.com/2021/02/symposium-constitutional-struggles-in-asia–part-i–drifting-between-democracy-and-despotism-in-sri-lanka/ and Mario Gomez, ‘Sri Lanka’s Dance with Democracy’, International Association of Constitutional Law Virtual Roundtable (blog, 23 November 2020) https://www.iacl-democracy-2020.org/blog/2016/3/23/blog-post-sample-9wntn-6ye75-hwawc-xx9lz-p6k2z-y8y6h-cplw4-4bcr5-t2hdf-pt4np-gk2af.

25. See also Centre for Policy Alternatives, A Brief Guide to the 20 th Amendment to the Constitution (June 2021).

26. For a discussion of power-sharing and autonomy arrangements in 13 multi-ethnic states, see Yash Ghai, (ed) Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States, (Cambridge University Press, 2000).

27. Sri Lanka Department of Census and Statistics, Census of Population and Housing 2012 Census, 2012).

28. Sinhala Commission, Interim Report (17 September 1997).

29. For discussion of life and politics of Bandaranaike, see James Manor, The Expedient Utopian: Bandaranaike and Ceylon (Cambridge University Press, 1989).

30. Ceylon Morning Leader, 17 July 1926, published in Rohan Edrisinha, Mario Gomez, V T Thamilmaran and Asanga Welikala, Power-Sharing in Sri Lanka: Constitutional and Political Documents, 1926–2008 (Berghof Foundation for Peace Support, 2008) 50–53. See also Bandaranaike’s articles in the Ceylon Morning Leader, between 19th May and 30th June 1926, in Edrisinha et al (n 29) 29–49. See William Clarence, ‘Woolf and Bandaranaike: The Ironies of Federalism in Sri Lanka’ (2001) 72(4) The Political Quarterly, 480.

31. The Kandyan Province, in the central part of the country, was the last province to be annexed by the British in 1815 and had retained its independence under Portuguese and Dutch colonial rule.

32. In their submissions to the Donoughmore Commission, the Kandyan National Assembly stated, ‘Ours is not a communal claim or a claim for the aggrandisement of a few: it is a claim of a nation to live its own life and realise its own destiny…We suggest the creation of a federal state as in the United States of America…A federal system…will enable the respective nationals of the several states to prevent further inroads into their territories and to build up their own nationality’. Donoughmore Commission, Report (1928) ch VI; the Kandyan National Assembly, The Rights and Claims of the Kandyan People. See also Edrisinha et al (n 29) 54–97.

33. Leonard Woolf, Memorandum on the Demands for Reform of the Ceylon Constitution. No 202 and No 202A. Submitted to the Advisory Committee on Imperial Questions in November 1938. Special Collections, University of Sussex Library, reproduced in Edrisinha et al (n 29) 100–103.

34. See Ivor Jennings, The Constitution of Ceylon (Oxford University Press, 3rd ed., 1953) 3–16 for a discussion of the process leading to the adoption of the 1947 constitution.

35. See the ‘Presidential Address by S.J.V Chelvanayakam, Illankai Tamil Arasu Katchi’ (ITAK, also known as the Federal Party in English), Silver Jubilee Volume (2000) 21–32; Edrisinha et al (n 29) 208.

36. Lord Soulbury, ‘Foreword’ in B.H. Farmer, Ceylon: A Divided Nation (Oxford University Press, 1963), vii–ix.

37. ‘Indo-Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka’, (29 July 1987) in S.I. Keethaponcalan, ‘Conflict and Peace in Sri Lanka: Major Documents’ (Kumaran Book House, 2009) 104.

38. Re the Thirteenth Amendment to the Constitution [1987] 2 Sri LR 312.

39. Elections were held for a merged North-East Provincial Council in 1988, but that council could not function effectively in the context of then ongoing conflict. The council threatened a unilateral declaration of independence in 1990 and was dissolved by the centre by an amendment to the Provincial Councils Act.

40. Neelan Tiruchelvam, ‘The Politics of Federalism and Diversity in Sri Lanka’ in Ghai (ed) (n 25) 197–218; International Centre for Ethnic Studies, Sri Lanka: The Devolution Debate (International Centre for Ethnic Studies, 4th ed, 1998); Sunil Bastian (ed), Devolution and Development in Sri Lanka (International Centre for Ethnic Studies and Konark, 1994); Rohan Edrisinha and Asanga Welikala (eds), Essays on Federalism in Sri Lanka (Centre for Policy Alternatives, 2008).

41. The Government’s Devolution Proposals (August 1995). See Edrisinha et al (n 29) for extracts of the 1995, 1996 and 1997 proposals, and the draft constitution of 2000.

42. Neelan Tiruchelvam was assassinated by the LTTE in July 1999, widely believed to be because of his involvement in the constitutional reform process and his attempts to seek a negotiated political settlement to the ethnic conflict.

43. 1978 Constitution (n 15) art 2. For a discussion of federal and unitary arrangements, see Re the Thirteenth Amendment (n 37) 319.

44. See Ketheshwaran Loganathan, Sri Lanka: Lost Opportunities (Centre for Policy Research and Analysis, 1996) 56–8.

45. The Constitutional Assembly of Sri Lanka, The Interim Report of the Constitutional Assembly (Report, 21 September 2017) 1–2.

46. Rajasingham (n 8).

47. Ibid.

48. For a discussion of 2016 process see Donald L Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press, 2021) 183–207.

49. Wijesekera v Attorney General [2007] 1 Sri LR 38.

50. Transfer of Powers (Divisional Secretaries) Act (No 58) 1992.

51. Ghai (n 41) 1.

52. Dian A H Shah, Constitutions, Religions and Politics in Asia: Indonesia, Malaysia and Sri Lanka (Cambridge University Press, 2017) 47–55, 77–81, 50–1; Schonthal (n 4) 202–18.

53. 1978 Constitution (n 15) art 9.

54. Shah (n 53) 51.

55. 1978 Constitution (n 15) art 10. ‘Entrenched provisions’ require a two-thirds majority and a referendum for their amendment.

56. Ibid art 14(1)(e).

57. Ibid art 15.

58. Ibid art 12 (1).

59. Ibid art 12 (3).

60. Colvin R de Silva, Safeguards for the Minorities in the 1972 Constitution (Young Socialist Publication, 1987) 10–12.

61. Shah (n 53) 50–51.

62. Benjamin Schonthal and Asanga Welikala, ‘Buddhism and Regulation of Religion in the New Constitution: Past Debates, Present Challenges and Future Options’ (2016) Centre for Policy Alternatives Working Paper No 3, 13.

63. Determination of the Supreme Court on the 19 th Amendment to the Constitution (Supreme Court Determination No 32/2004) and Ashik v Bandula [2007] 1 Sri LR 191 (‘Ashik’). See Schonthal, ‘Environments of Law: Islam, Buddhism, and the State in Contemporary Sri Lanka’ (2016) 75(1) The Journal of Asian Studies 137 for an analysis of Ashik. For a discussion of how the state intervenes in Buddhist monastic life, see Schonthal, ‘Securing the Sasana through Law: Buddhist Constitutionalism and Buddhist Interest-Litigation in Sri Lanka’ (2016) 50(6) Modern Asian Studies 1966.

64. Report of the Public Representations Committee on Constitutional Reform, (2016), Chap 4, 16–19.

65. See also Donald L. Horowitz, Constitutional Processes and Democratic Commitment (Yale University Press, 2021) 188, 198.

66. A group of army and police officers tried to capture state power in 1962. See Donald Horowitz, Coup Theories and Officers’ Motives: Sri Lanka in Comparative Perspective (Princeton University Press, 1980).

67. De Votta (n 3) 49; Tambiah (n 3) 58.

68. On constitutional incrementalism, see Hanna Lerner, Making Constitutions in Deeply Divided Societies(Cambridge University Press, 2011); Donald L. Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge University Press, 2013) and Andrew Harding, Prospects for Malaysia Baru: Constitutional Change without Changing the Constitution, on file with the author.

69. For example, the Right to Information Act (RTI Act), No 12 of 2016, that established the RTI Commission. See Mario Gomez, ‘The Right to Information and Transformative Development Outcomes’ [2019] Law and Development Review 837.

70. See Wickramaratne (n 22) 90–91 and Jayawickrama (n 22), both of whom contend that the Executive Presidency can be abolished by way of a two-thirds majority only and without a referendum.

71. For a discussion on the option of a separate Constitutional Court along the lines of the Kelsenian model, see Raaya Gomez, ‘A Constitutional Court for Sri Lanka’ in Jayewardene and Scharenguivel (eds), Perspectives on Constitutional Reform in Sri Lanka (International and Comparative Law Society, 2021) 390–416.

72. See the scholarship discussed by Asanga Welikala, ‘The Idea of Constitutional Incrementalism’ (Working Paper on Constitutional Reform No 14, Centre for Policy Alternatives, January 2017) 21.

73. Constitutional Assembly of Sri Lanka, Report of the Panel of Experts to the Steering Committee (Report, 11th January 2019). See Horowitz (n 69) 199–202 for a discussion of those proposals.

74. David Landau and Miguel Schor, ‘Symposium—Introduction: The Legacies of Trumpism and Constitutional Democracy in the United States’, International Journal of Constitutional Law (Blog Post, 19 January 2020) http://www.iconnectblog.com/2020/01/symposium-introduction-the-legacies-of-trumpism-and-the-state-of-constitutional-democracy-in-the-united-states/.