Asanga Welikala, in ConstitutionNet, 2 May 2022, where the title reads “Economic Crisis and Constitutional Reform in Sri Lanka”
In Sri Lanka, mass protests against the unaffordable cost of living have coalesced on a central demand: the resignation of the President, Prime Minister, and Finance Minister, who are brothers. Against this background, three proposals for constitutional reform have surfaced – from the Opposition, a breakaway group of MPs, and the government respectively. The Opposition’s Bill would, among other important features, abolish presidentialism and return Sri Lanka to a parliamentary form of government, while reinforcing constitutional democracy through the separation of powers and strong checks and balances. From a design and democratisation point of view, it is the only credible constitutional reform proposal on the table, but its passage is far from guaranteed – writes Dr. Asanga Welikala
The severe day-to-day hardships caused by a deteriorating Sri Lankan economy had given rise to small sporadic protests for months, but on the night of 31 March 2022, these erupted into a much more serious demonstration when protestors attempted to storm the President’s private residence in Colombo. The event clearly captured the public mood and within hours a concerted protest movement, which demanded the resignation of the three Rajapaksa brothers who were President, Prime Minister, and Finance Minister, had begun. In the days following, not only have protests taken place in most cities of the island, but its main body has occupied Colombo’s seafront esplanade, the Galle Face Green, continuously. The government’s attempts to quell the protests with curfews, social media bans, and the use of armed force have consistently failed. Its attempts to appease protestors with the resignation of ministers (including Finance Minister Basil Rajapaksa) and top officials such as the Central Bank Governor and Treasury Secretary have also failed, as have its attempts to extend olive branches through the offer of discussions with the protestors. For nearly three weeks now, not only has the protest movement grown, with celebrities, businesses, university students, teachers, and trades unions swelling its ranks, but it also appears that until President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa either resign or are otherwise removed, it will not subside.
The movement draws a clear connection between the economic crisis and the incompetent, corrupt, and unaccountable culture and structures of governance that caused the crisis.
While the trigger for the protests was the economy, it became apparent very early on that the protests were also about many other, more political, demands and aspirations. The demand for reform has consistently accompanied the demand for the end to Rajapaksa rule. The movement draws a clear connection between the economic crisis and the incompetent, corrupt, and unaccountable culture and structures of governance that caused the crisis. In particular, the causal connection between, on the one hand, the presidential system of government and the unfettering of the presidency by the Twentieth Amendment to the Constitution enacted by the Rajapaksas in 2020, and on the other hand, poor decision-making leading to economic catastrophe, has been implicit in even the most banal chants on Galle Face Green.
Three Proposals for Constitutional Reform
It was in this context that the main Opposition group in Parliament, led by the Samagi Jana Balawegaya (SJB) party, proposed a constitutional amendment bill in Parliament on 21 April 2022. The Opposition’s Twenty First Amendment to the Constitution Bill seeks, among other features discussed below, to abolish presidentialism and return Sri Lanka to a parliamentary form of government, and to restore the fourth pillar institutions that were rendered impotent by the Twentieth Amendment. Subsequently, a group of MPs that had broken away from the Rajapaksas’ ruling party, has also submitted another constitutional amendment bill, which seeks to repeal some of the more objectionable features of the Twentieth Amendment and restore the ‘premier-presidential’ model of semi-presidentialism that prevailed under the Nineteenth Amendment. Moreover, the Cabinet has appointed a sub-committee to propose its own constitutional amendment bill, with drafting instructions that suggest that this too would propose something along the lines of the Nineteenth Amendment. It is difficult, however, to regard the latter two reform proposals seriously, for two reasons. First, they are not authentic reform proposals but rather strategic gestures by their proponents to serve other political objectives: in the case of the government, to appear to be responding to the protestors’ demand for reform; in the case of the breakaway group, to further their claims to power in the event the Rajapaksas depart the scene. Secondly, in only tinkering with the executive presidency, they do not remotely answer the public clamour for a very fundamental form of democratic reform, the core requirement of which is the abolition of presidentialism. For these reasons, I disregard these initiatives, and discuss what is from a design and democratisation point of view, the only credible constitutional reform proposal on the table: the Opposition’s Twenty First Amendment Bill.
The Objectives and Institutional Features of the Twenty First Amendment Bill
In his speech in the House introducing the framework of the Bill, the Leader of the Opposition Sajith Premadasa MP enumerated four main objectives. First, the realisation of a competent, efficient, transparent, and accountable government, and the values mentioned in the Preamble to the Constitution, as necessary requirements of the economic recovery of the country. Second, the abolition of the executive presidential system and replacement with a parliamentary executive, while also reinforcing constitutional democracy through the separation of powers and strong checks and balances. Third, the reinstatement of the fourth pillar framework with the re-establishment of the Constitutional Council and the independent governance oversight commissions. Finally, the introduction of two new institutions: the Council of State and a National Security Council. In the achievement of these overarching aims, the Bill sets out the following institutional architecture.
- The Executive
The President of the Republic will become a ceremonial Head of State, and will enjoy the titular styles and titles that usually attach to that office in Commonwealth parliamentary democracies (e.g., Commander-in-Chief). The President’s role as Head of the Government is removed, as is direct election to the office. The President in future would be elected by a majority vote in Parliament for a five-year term, renewable once.
Substantive executive power would shift to the Prime Minister and the Cabinet of Ministers, who are collectively and individually responsible solely to Parliament…
Substantive executive power would shift to the Prime Minister and the Cabinet of Ministers, who are collectively and individually responsible solely to Parliament (and of course electorally, ultimately to the people). The President would formally appoint as Prime Minister the Member of Parliament who enjoys the confidence of Parliament. The President would have no personal discretion in appointing and dismissing the Prime Minister; in both cases, the confidence of Parliament would be the sole test. The President would be constitutionally enjoined to act on the advice of the Prime Minister in the appointment and dismissal of Cabinet and other Ministers and in assigning subjects and functions to them. The Prime Minister would be the Head of the Cabinet of Ministers, and therefore the Head of the Government.
The Prime Minister will vacate office on death, resignation, on ceasing to be a Member of Parliament, on losing a vote of confidence, or on a defeat on the budget in Parliament. When the Prime Minister loses office in any of these ways, Parliament may elect another Member of Parliament to form a government. The vacation of office by the Prime Minister would cause the dissolution of the government.
The Bill also provides that upon Parliament passing a motion of no confidence against an individual Cabinet or non-Cabinet Minister, such Minister shall be deemed removed from office. This was an implicit possibility under the Westminster traditions of the Sri Lankan Parliament that has always existed – although never once put into practice – but the Bill makes express provision for this as an added safeguard for ministerial accountability. In a further response to the ‘jumbo Cabinets’ of the Rajapaksa era, the Bill introduces a cap of 25 on both Cabinet and non-Cabinet Ministers.
In terms of the Bill, Parliament would be elected for a fixed five-year term, although it may be earlier dissolved by a parliamentary resolution passed by an absolute majority vote. The President’s role in dissolution is reduced to a formality rather than a substantive power. Other functions of the President in respect of Parliament such as prorogation and summoning, would also, of course, in future be exercised on the advice of the Prime Minister.
Putting in place some safeguards against capricious defections goes to the heart of ensuring the stability of the parliamentary executive.
A particular concern in Sri Lankan debates, in the context of the proportional representation electoral system which only exceptionally produces large governing majorities, has been the stability of the executive. While ideally the shift to parliamentarism would also have reformed the electoral system to address this concern, this was clearly not a possibility in the urgent, crisis-affected, present context. Indeed, during the previous attempt at constitution-making in 2016-18, one of the issues on which the process got bogged down was the vexed issue of changing the electoral system in this culturally plural society. The present Bill therefore addresses the executive stability question from a different angle: that of anti-defection provisions. Proportional representation may be one of the few successful mechanisms for the accommodation of pluralism in the current Constitution, but it has also produced a fragmented and factionalised party system in which the practice of corrupt, or at least, opportunistic crossovers has become endemic. Putting in place some safeguards against capricious defections therefore goes to the heart of ensuring the stability of the parliamentary executive.
The Bill accordingly proposes two measures. The first is to prohibit the acceptance of ministerial office by Members of Parliament who change their allegiance from the party through which they were elected at the general election, for the duration of that Parliament. This removes a major incentive for crossovers, and in particular those that aggravate the asymmetry of resources and patronage as between government and opposition. Secondly, the jurisdiction of the Supreme Court in cases where a Member of Parliament is expelled from their party for changing party allegiance is confined to the legal merits, as opposed to the procedural propriety, of the expulsion. This addresses a peculiarity of the Supreme Court’s case law in this area. The practice has developed whereby MPs who crossover and are disciplined by their party, then challenge the expulsion in the courts. This litigation usually takes many years to conclude, while in the meantime the MP enjoys both their seat and their ministerial office. Very often, the next general election would arrive before the case is disposed of, enabling the MP to legitimately get elected from a new party and thereby render the previous expulsion and the litigation redundant. The Bill’s ouster of the Supreme Court jurisdiction in relation to party procedures therefore seeks to ensure more effective disciplinary control by parties over MPs. While this raises some freedom of conscience concerns, the greater problem of corrupt crossovers and the need to address them as an integrity issue more than a stability issue outweighs the competing normative considerations.
- Fourth Pillar and New Institutions
The over-centralisation of power in the executive presidency, the resulting politicisation of administrative appointments, and the prominence of some key presidential appointments – such as the Governor of the Central Bank and the Treasury Secretary – in policy decisions that led to the present economic disaster, have made the case for the re-establishment of the pre-Twentieth Amendment de-politicisation framework unanswerable.
The Constitutional Council, which was abolished by the Twentieth Amendment, would be re-established. It is a body chaired by the Speaker and having as members the Prime Minister, the Leader of the Opposition, a nominee of the other parties in Parliament, and five other independent members. It has two functions: to make binding recommendations to the President for appointments to the independent commissions (overseeing the public service, bribery and corruption, human rights, elections, etc.) and to approve the President’s recommendations for appointment to key state offices, including senior judges and others such as the Attorney General, the Auditor General, and the Inspector General of Police. The Right to Information Commission and the Colombo Port City Economic Commission are added to the bodies that shall be appointed on the recommendations of the Constitutional Council, and the Governor and the Monetary Board of the Central Bank are added to the offices that shall be appointed on the approval of the Constitutional Council.
The Opposition’s Twenty First Amendment Bill makes provision for two new institutions. A new National Security Council (NSC) would be established on a constitutional footing, with the responsibility to formulate policy and monitor policy implementation in relation to national security. Currently, the NSC is an ad hoc body without any statutory basis or formal membership; it functions entirely at the discretion of the President. This institutional weakness has led to accountability problems. Since there is no legal requirement for the Prime Minister or the Minister of Defence to be part of the NSC, Parliament has no way of overseeing what transpires in the NSC. Similarly, the various intelligence agencies operate in a complete accountability vacuum. The proposed NSC arrangement, which will be further elaborated by an Act of Parliament, seeks to close these accountability loopholes.
The new Council of State would provide a high-level mechanism of civil society consultation and the infusion of expertise into the policy-making process of the government…
One of the most novel features of the Bill is the provision for a new Council of State. Its role is to discuss matters of national importance and to provide non-binding advice to the government. It would be chaired by the Prime Minister, and its ex officio members are the Ministers of Finance, Foreign Affairs, and Defence; the Speaker; the Leader of the Opposition; one Member of Parliament to represent the views of parties other than that of the Prime Minister and the Leader of the Opposition; and the Attorney General. But the majority in the Council would be twelve independent members who are not Members of Parliament chosen to represent fields of expertise in business, economics, political science, constitutional law, international law and relations, and science. In the appointment of the independent members, the Bill provides that Sri Lanka’s societal pluralism, including gender diversity and youth inclusion should be considered. Further regulatory detail concerning the Council of State will be provided for by an Act of Parliament, including provision for the appointment of the independent members by the Constitutional Council and for terms of office.
The Council of State is to provide a high-level mechanism of civil society consultation and the infusion of expertise into the policy-making process of the government. The independent members, even though their advice is formally non-binding, will have an institutional forum to contribute expertise to and interact with senior members of the executive. They may also speak publicly about the advice they have offered, and if the government has rejected that advice, their views will inform parliamentary and public debate on government policy.
The Process Ahead
The Bill, being a Bill proposed by the Opposition, has been presented as a Private Members Bill. The normal procedure for such Bills has many stages and, moreover, has a very unhurried timescale. However, Parliament can suspend the relevant Standing Orders and take up the Bill much sooner. Once the Bill is placed on the Order Paper, there will be a hearing and determination by the Supreme Court on the constitutionality of the Bill. The jurisdiction of the Court is to determine whether the Bill can be passed only by a two-thirds majority in Parliament, or whether in addition, it would require referendum approval.
It seems clear the Opposition will attempt to withdraw confidence from the government and install a new government…
The Opposition’s Twenty First Amendment Bill is yet at the very first stage of presentation to the Secretary General of Parliament. Any further progress will be determined by the politics of parliamentary representation, in the context of the urgency imposed by the economic crisis, the draining of the government’s legitimacy due to the protests, and the implosion of the government’s parliamentary bloc. Before the Bill is taken up, it seems clear the Opposition will make an attempt to withdraw confidence from the government of Prime Minister Mahinda Rajapaksa and install a new government. The dismissal and appointment of a government may be effected by an absolute majority, that is, 113 MPs out of 225. Intense negotiations around how such a new majority might be cobbled together are continuing at the time of writing.
However, the supermajority required for constitutional amendments is 150 MPs. It will therefore fall on a new government, with the support of Opposition parties, to muster that number. If that hurdle is surmounted successfully in what is now a highly fragmented Parliament, there may also have to be a referendum if the Supreme Court orders one.
Against these multiple procedural hoops, however, must be weighed the very significant influence of the political backdrop within which all this takes place. Not only is the scale and intensity of the protest movement unprecedented in Sri Lanka, but it is probably the first genuine nation-building moment in the post-independence history of the country. It is the first time the ethnic and religious divisions of the past are being explicitly and spontaneously eschewed, that a civic, democratic, and constitutional vision of the future Sri Lanka is being publicly articulated, and demands made of politicians to deliver it. The politics of the moment therefore are a highly potent factor in any estimation of the prospects of the Bill’s success, although with the normal election cycle still at least two years away, the capacity of the anti-reform sections of the political class to stymie or backtrack on the public demands must also not be underestimated. If it is the unique ‘protest factor’ that tilts the balance in favour of the passage of the Bill, then through the abolition of presidentialism, Sri Lanka would have achieved a fundamental revision of a presidential constitution without also replacing that constitution.
Dr. Asanga Welikala is Lecturer and Head of Public Law at the School of Law, and the Director of the Edinburgh Centre for Constitutional Law, at the University of Edinburgh.