Erasing Democracy – The 20A & The Future Of Sri Lanka’s Political System

By Athulasiri Samarakoon –OCTOBER 4, 2020

Dr. Athula Samarakoon

The government of Sri Lanka is currently amending the constitution for the 20th time. Though I use the term ‘the government’ to explain the proponents of this amendment as the coalition members of the Sri Lanka Podujana Peramuna (SLPP), there seemed to be no unanimity on the proposed amendment among them at the beginning. Understandably, there was a clear division and greater reluctance among them to accept ‘the authorship of the amendment’ in public. Some even seemed to feel quite ashamed of it. Testifying to this lack of cognizance of the amendment which was turning into a subject of controversy within the SLPP itself, the prime minister appointed a special committee to study and, probably, to redraft it. Prime minister Rajapaksa’s move proved very clearly that the amendment was entirely a design of his brother, former secretary of defense under his government, the current president Gotabaya Rajapaksa and his confidants, who were never revealed or, perhaps, worked behind the scene.

However, the president, vehemently reaffirming his position, declared that the 20th Amendment will be presented to parliament only as the originally gazetted version of it; ‘the president’s arbitrariness’, some interpreted his action as such. However, in a move to reconcile the controversies within the government, its spokesmen told that any change to the amendment, if necessary, could be negotiated at the “committee stage” in parliament. Now the 20A is before the parliament and also being challenged by 39 petitions submitted before the supreme court. Many of the petitions seem to argue that the amendment is an attack on people’s sovereignty; hence, it requires a referendum to decide on its adoption.

Basically, the 20A is proposing to revoke the 19A, except for a few provisions of it. During the last general election, the SLPP asked for a 2/3rd majority from voters to bring a new constitution. Yet, no new constitution has been presented yet; instead of a whole new constitution, what we have is the 20A, which is likely to restore the autocratic powers of the president under the 1978 constitution. And the 20A comes with that promise to bring a new constitution shortly after this most urgent (why?) amendment is passed in parliament.

So, the assurance is that the 20A is just for a short period, a temporary measure, a transition, a passage to a new reform (?) etc. But, it also can happen otherwise, that the 20A itself will be the change, the new constitution, and the transformation, who knows? Therefore the latest political debacle in Sri Lanka revolving the 20A is an important one on a very crucial amendment, which can be the most essential reform to ‘localize democracy’ as the nationalists want it to do, or the one which will undo the settings of the democratic system according to those liberals and others who oppose it. 

The current mobilizations against the 20A among the opposition parties, civil society and lobbying teams largely carry the argument that the 20A may lead to an authoritarian executive, a despotic presidency, which already is “the Head of the State, the Head of the Executive, the cabinet and the government, and the Commander-in-Chief of the Armed Forces” [Article. 30. (1) of 1978 Constitution]. Before the 19A was incorporated into the constitution, the president of Sri Lanka was an omnipotent institution of the government with unparalleled powers and immense discretion to bypass the legislature and the judiciary. The executive pillar of the government was stronger than the other two, the legislature and the judiciary, which appeared just subsidiary or nominal institutions.

With the 19A of 2015 a distinct shift of the hitherto existing powers of the president took place, with the support of an absolute number of members in parliament, and only one member voting against it. Mr. Maithripala Sirisena, then president, told after the 19A was passed with an absolute majority voting in favor, that he sacrificed (offered as an alms giving/mama janadhipathi balaya dan dunna) his presidential powers. However, it was clear that Mr. Srisena’s act was never a self-sacrifice but a result of the agreement he had entered with the forces that nominated him as the presidential candidate, then against a very powerful incumbent, seen as indomitable, Mr. Mahinda Rajapaksa.

It is very clear that the president’s discretion was challenged by the 19A to a considerable extent and the prime minister, the constitutional assembly and the independent commissions were made to stand as some important checks against the president’s arbitrary moves. The 19A empowered the independent commissions, and, as a result, the judiciary could, for the first time, reverse the president’s actions, referring to them as violations of fundamental rights of the people. The balance of power created by the 19A within the government organs was very clear. Yet, during the 2015-19 period, this very balance was interpreted as ‘weakness of the government’ by those who criticized it as a conspiracy involving western powers who wanted to implant ‘good governance’ here.

Consequently, the yahapalanaya regime was overthrown when the public opinion imbued with the ideas of ‘weakness of the government, political instability and the condition of weak national security’ etc. was rising very high, due mostly to the impact of the power struggle between the president and the prime minister. The arbitrary removal of premier Ranil Wickremesinghe on 26th October 2018 and installing of Mr. Mahinda Rajapaksa as PM were both serious violation of the constitution by president Sirisena. That episode was a clear evidence in the eyes of the public for the ‘instability’ of the government. And, the worst came after that, on 21st October 2019, with the Easter attack. And this tragedy of a series of bomb explosions in a single day, killing and injuring hundreds of civilians, further sharpened the public opinion against the government which seemed to be in disarray. Later, in two consecutive elections, an overwhelming majority of the Sinhalese-Buddhists voted against the UNP, the major party in yahapalana regime. Now, in October 2020, Sri Lanka’s democracy is confronting yet another threat, arising not from terrorists nor due to the lack of unity, power and weakness of the government, but from the motives for absolute power of the very government banking on the power of nearly a 2/3rd majority in parliament.

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