Ed Note– We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the fourth response in the series, by Professor Dinesha Samararatne.
Awantha Artigala, a renowned cartoonist in Sri Lanka goes to the heart of the matter. Rather than leading the way, the 17th, 18th, 19th and now the 20th Amendments to Sri Lanka’s constitution have primarily followed the political tone of the day. I used the metaphor of ‘constitutional ping-pong’ recently to assess the same developments but I think Artigala’s take is more incisive. In this Blog Post, I place Artigala’s artistic critique with Tarunabh Khaitan’s academic assessment in Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India in assessing the 20th Amendment in Sri Lanka. The comparison points to the chameleon nature of the constitutional schemes in Sri Lanka, a feature evident throughout its history of constitutional governance. Rather than constraining and directing state actors and institutions to act according to principles of constitutionalism (such as respect for fundamental rights, separation of powers, accountability etc), chameleon constitutions take colour primarily from its context, whether in practice, by amendment or in the wholesale replacement (Sri Lanka has had 4 written constitutions since 1931).
India and Sri Lanka as Comparators
Khaitain’s piece tells us the story of the ‘incremental and systemic’ democratic deconsolidation in India, focusing on how the BJP Government undermined/captured ‘mechanisms that seek executive accountability.’ Before responding to these claims in the Sri Lankan context, it is useful to observe the way in which the constitutional schemes of Sri Lanka and India compare. In terms of regime type India is a parliamentary system with a federal structure. Sri Lanka has had a semi-presidential system (President-Parliamentary) but under the 19th Amendment was a Premier-Presidential regime and is now, under the 20th Amendment, a President-Parliamentary regime. Sri Lanka is a unitary state with power devolved to Provincial Councils under the 13th Amendment. India and Sri Lanka emerged out of colonial rule in distinctly different ways. Sri Lanka was deemed a model colony that embraced Westminster-style parliamentarianism whereas India went through a significant moment in its history in terms of constitution-making. Sri Lanka developed strong welfare policies for education and health and avoided extreme forms of poverty. India went on to emerge as a powerful economy alongside of extreme social and economic inequalities. Geographical proximity, deep historical ties, cultural affinities etc. at least in part contribute to a sense of legal and even constitutional solidarity between the two jurisdictions. However, it is the Sri Lankan legal culture that looks to India and has over time drawn from Indian jurisprudence in developing its common law and constitutional doctrine.
The passage of the 20th Amendment takes place in this context and was essentially a repeal of the 19th Amendment. Two reforms from the 19th Amendment that survived the 20th Amendment are the right to freedom of information and the judicial remedy for any violation/imminent violation of a fundamental right by the acts/ omissions of the President. The regime type has been changed to Presidential-Parliamentary, the Constitutional Council has been replaced with a Parliamentary Council which has no binding powers except to provide observations sought by the President, and the provision for ‘urgent bills’ has been re-introduced, among other changes. During the Committee Stage the number of judges of the appellate courts was increased. To the extent that the 19th Amendment was revolutionary (in the constitutional sense) so is the 20th Amendment. Both Amendments seek contrasting outcomes and a fundamental shift in terms of constitutional governance. Both Amendments primarily take colour from the political order of the day and are therefore, chameleon like.
Forms of Rationalization
The incremental attack on constitutional democracy in the form of ‘a thousand cuts’ that are aimed at undermining accountability in India, contrasts with what seems to be a full-frontal assault and outright capture of the constitution and the state that is underway in Sri Lanka. This particular iteration of state-capture was predicted and critics of the 20th Amendment have pointed out in detail the scale of this full-frontal attack (here and here). However, some common features are evident in the modalities of executive aggrandizement in Sri Lanka and in India that Khaitan describes as forms of rationalization. They are 1) ‘a discourse of hyper-nationalism’, 2) ‘a managerial discourse that promised probity, decisiveness, and efficiency’, and 3) ‘a welfarist-developmental-populist discourse that characterised procedural requirements as hurdles that got in the way of delivering development to the people.’ These forms of rationalization have been deployed in Sri Lanka in the full-frontal and outright state capture that is underway. Khaitan’s assessment was prior to the Covid-19 pandemic. Today, the pandemic has amplified the strengths as well as the weaknesses of most constitutional systems, including Sri Lanka and India. Moreover, it reveals the hypocrisy and inconsistencies of the very forms of rationalizations that are deployed by the political elite.
For instance, a managerial discourse has been a central feature of governance. The previous Government’s alleged negligence in relation to national security and the Easter Sunday attacks of 2019 has been used as a point of contrast by this Government as well as the people in asserting its emphasis, particularly on decisiveness and efficiency. The use of serving and retired military officials in regular government has been a feature of this approach, including in Sri Lanka’s response to the pandemic. The stemming of the spread of the pandemic earlier this year was attributed to this managerial discourse. However, the current surge of new cases has cast that first experience in a different light. Similarly, hyper-nationalism re-emerged in Sri Lanka’s post-war period and has been capitalised by political forces, despite concerns raised by Tamil and Muslim minorities. At the same time, the Government was successful in garnering support for the repeal of the prohibition on dual citizens from entering Parliament (introduced by the 19th Amendment). Moreover, the vote of 6 Muslim Members of Parliament from the Opposition (along with one more MP from the Opposition) voting ‘yes’ enabled the Government to secure the 2/3 of votes required to pass the Amendment.
Elite Centric Law and Constitutional Reform
The gap between the rhetoric of a people-centric approach and actual practice is evident in the realm of law and constitutional reform as well. When the petitions challenging the constitutionality of the 20th Amendment Bill were being heard by the Court, the Attorney-General shared with the Court the amendments that the Government intended to make at Committee Stage. As noted by Court, the petitioners chose not to make submissions on those amendments. However, a new and substantial amendment was proposed at committee stage to increase the number of judges in the Court of Appeal from 6-11 to 6-19 and in the Supreme Court from 6-10 to 6-16. These new appointments will be made at the discretion of the President under the 20th Amendment. This reform went through with no consultation or public discussion.
However, it is important to note that the introduction of substantial changes at Committee Stage or in ways that minimise public debate on proposals is not new. The proposed constitution of the Constitutional Council under the 19th Amendment was changed radically during Committee State. The number of Members of Parliament were increased from 3 to 7 and the number of unelected members reduced from 7 to 3. The Provincial Councils Elections (Amendment) Act which was to introduce a 25% quota for women included a replacement of the proportional representation system with a mixed-member proportional representation system during Committee Stage. In fact, the 1978 Constitution itself was introduced through a Parliamentary Select Committee which was actually set up to consider amendments to the 1972 Constitution. These practices affirm the elite-centric approach to legal and constitutional reform that disregards or marginalises ‘the People.’
‘Urgent bills’ were re-introduced through the 20th Amendment which in effect mandates the Executive to require the Court to determine the constitutionality of bills within 24 hrs to 3 days. Court determined that this proposal ‘does not infringe the Sovereignty of the People’ (Hansard 20 Oct 20, 1171 – 1172). The Government has signalled its intention to adopt a new constitution by appointing ‘an expert committee’ and it is essential that lessons learnt from past experiences, including the failed attempts 2016-18 be used to insist on transparency, access and accountability in the process.
Judicial Review and Basic Structure
Unlike the Indian Constitution which mandates the Court with judicial review of legislation, in Sri Lanka only pre-enactment judicial review of bills is permitted. In opposing the 20th Amendment Bill petitioners made the argument, among other things, that the Bill taken as a whole would impact the basic structure of the 1978 constitution including the independence of the judiciary. The basic structure argument has been present in Sri Lanka’s constitutional adjudication discourse since 1989. In the majority judgement of the Supreme Court Special Determination on the constitutionality of the 13th Amendment, the Court rejected the applicability of the basic structure doctrine. However, as I analyse elsewhere, since then the argument has been upheld in several judgements including in the Special Determination on the constitutionality of the 19th Amendment. In the Court’s Special Determination on the 20th Amendment Bill however, the Court categorically rejected the idea of un-amendability of the basic structure. The Court implicitly suggested that if a Bill to amend the constitution was approved by the People at a referendum, it could alter the constitutional scheme regardless of the content and scope of the amendment. However, in practice, this reasoning allows the Court a wide margin of discretion and power to approve amendments (that is to say, to determine which amendments require approval at a referendum and which do not). For instance, in determining the constitutionality of the 18th Amendment Bill (2010) the Court determined that the removal of the term limit of the office the President did not require a referendum. In the present case, even though the Constitutional Council was being replaced by a Parliamentary Council with no binding powers, the Court held that the amendment could be passed with a special majority. Court characterised the Parliament Council as a redefinition of safeguards on the President’s power of appointments (while maintaining silence on the qualitative difference between the two bodies). Court held that in light of the Court’s view on the proposal to restore immunity, the people had a judicial remedy and the proposed reforms did not undermine the Sovereignty of the People (Hansard 20 Oct 20, 1163-1164).
Push Back on Immunity
In contrast, the Court pushed back against the attempt by the Government to restore full presidential immunity during office through the 20th Amendment. With the exception of a dissenting opinion, the Court declared that the re-introduction of full Presidential immunity during office requires approval at a referendum. This aspect of the Court’s determination is significant. Its implementation has the potential to be crucial in promoting constitutional governance in the future. In contrast to their views on the Constitutional Council, the Court reasoned here that the narrowing of Presidential immunity by the 19th Amendment enhanced the scope of Fundamental Rights (Art 3 read with Art 17). Drawing on previous jurisprudence, the Court reasoned that ‘[t]he resulting position is that it entrenched and enhanced the often unpronounced and a nuanced right which the People have conferred on themselves under the Constitution – which is the right to redress violation of their fundamental rights by executive and administrative action. This right…is unrestricted in its operation.’ (1145-1146). The dissenting view was that the reversal to status quo did not impact the Separation of Powers under the Constitution (Hansard 20 Oct 20, 1203-1204).
Situating Sri Lanka’s experiences in constitutional governance in conversation with India’s experiences as interpreted by Khaitan, highlights a fundamental difference in the two jurisdictions. In India, to a significant extent, struggles over constitutional governance seem to have been resolved in favour of promoting constitutional democracy. Governance under the BJP and during emergency rule in the 1970s are thus seen as exceptions. In Sri Lanka, constitutional disharmonies seem to have resulted in forces that undermine constitutional democracy often winning the day. Khaitan points to a state-party fusion in India under BJP rule. In Sri Lanka, this fusion was evident from the 1970s when the public service was brought under the Cabinet. Sri Lanka has arguably gone past a state-party fusion to what Uyangoda describes as a post-democratic state. The political party in power is a very young one, formed around a family. In contrast, the two oldest and established political parties are reduced to 1 seat in Parliament and the Opposition has so far not been able to live up to its role.
The fundamental differences between the two jurisdictions are also evident in the difference in regime types between India and Sri Lanka. India’s parliamentary system has remained intact despite attempts to undermine it. Sri Lanka, however, moved from a parliamentary system to a semi-presidential system by 1978. Unlike in India, federalism has not been politically viable in Sri Lanka despite calls for federalism from even before Sri Lanka’s political independence. The attempt to move to a more democratic regime type within semi-presidentialism under the 19th Amendment (from a presidential-parliamentary regime to a premier-presidential regime) was short lived. With the 20th Amendment, Sri Lanka is back to the worst possible regime type under a semi-presidential system. In a recent empirical study on regime types, Thomas Sedelius considers the different sub-types that come under the umbrella of semi-presidentialism using several indicators, such as the Freedom House’s Index of civil liberties, the Corruption Perceptions Index and the Human Development Index. He argues that a semi-presidentialism in which the President is the most powerful office (a president-parliamentary regime) is the worst possible option in terms of democratic performance and government performance. Under the 1978 Sri Lanka was a president-parliamentary regime. The reforms introduced under the 19th Amendment reorganised the regime into a premier-presidential system. In his study, Sedelius claims that a parliamentary regime is the best possible option as a regime type. Interestingly, he argues further that a semi-presidential system in which the President does not have the power to remove the Prime Minister (a premier-presidential regime), as was the case under the 19th Amendment, is either as effective as a parliamentary regime or even better. In other words, from a constitutional design point of view, Sri Lanka seems to have moved from one of the best possible semi-presidential regime types in 2015 (Premier-presidential regime) to one of the worst possible (a president-parliamentary regime) by 2020. It is deeply regrettable that the actions and inactions of the office bearers under the 19th Amendment subverted the strengths of that system to the worst possible extent. The political disenchantment that was generated by their actions and inactions make it almost impossible to defend the strengths of a premier-presidential regime in Sri Lanka.
Chameleon Constitutions that Go Beyond A Thousand Cuts
The 20th Amendment and the constitutional changes that it has brought about, is yet another example that highlights the way in which constitutions and their amendments have taken colour from the political order of the day in Sri Lanka. This phenomenon has been described by others as instrumentalist constitutions (Thiruchelvam), constitutions without constitutionalism (Edrisinha), the usurpation of constitutional ideology (Coomaraswamy) and as reflecting ‘partisan self-interests of constitution-makers’ (Welikala). These compelling critiques have provided the much-needed intellectual foundations for resistance to different attempts at undermining constitutional democracy in Sri Lanka and will continue to influence our thinking. However, these accounts place Sri Lanka’s experiences in constitutional governance as transgressions that depart from what can be broadly described as liberal constitutionalism. In framing this phenomenon in terms of chameleon constitutions my intention is to shift the discussion from one that is preoccupied by transgressions to a discussion that engages a broader set of questions. For instance, what factors enabled resistance to the re-introduction of presidential immunity from suit? Why was the right to freedom of information left intact? Is it an indication of the enduring nature of some aspects of the 19th Amendment? Why is that the Constitutional Council has not developed a similar enduring character? These and similar questions might enable us to develop plausible explanations about the historical, political, social and economic dynamics about chameleon constitutions in Sri Lanka and the prospects for constitutional change that advances constitutional democracy.