Abstract
Resistance to political change is a hallmark of Sri Lankan politics since the 1980s. Thus, the polity has been able to sturdily maintain the status quo. Linking contemporary politics with the political legacies of the 1980s, the article argues that by providing continuity to the 1978 constitution, Sri Lanka’s political system has become a hostage to the status quo. This is shown in the analysis of the functioning of democracy, and ethnic conflict and peace-making. The rise of illiberal democracy is traced to the present constitution and the centralizing tendencies of the J.R. Jayewardene regime. While some successive power-crazed leaders have nurtured illiberalism, others have undertaken a limited constitutional reform. Yet, none of them have rejected illiberalism altogether and shown commitment to a liberal constitutional order. Likewise, the debate on political solution is centred on the 13th Amendment to the Sri Lankan Constitution. Both the government and opposition leaders have a shared interest in failing every peace initiative and denying a permanent political solution. Together they form a barrier to comprehensive political reform in the country.
Keywords
Sri Lanka, as a nation, is wedded to the past. While the influence of ancient history permeates society to cause deep divisions along ethnic lines (see Kemper, 1991; Tambiah, 1992), the regressive policies and centralized governance system, adopted in 1978 and consolidated in the 1980s, have defined the nature of contemporary polity. There is, thus, continuity in the political system: compared to parliamentary democracy that lasted for 30 years (1948–1977), the present executive presidential system (1978-), despite all the ills and unpopularity, is deeply entrenched in the nation. As Sri Lankan leaders prefer the status quo, barriers and resistance to a systemic change have become strong. The country has an embedded political culture of adoring illiberal policies, practising regressive politics, and thwarting or negating radical political change. This has been unarguably the main cause of the dreadful violence and democratic regression in post-colonial Sri Lanka.
The article aims to explore the link between political development in Sri Lanka in the 1980s and contemporary politics. As issues of democracy and conflict have dominated the agenda of politics throughout the period, it focuses on the rise of illiberal democracy—characterized by a democratically elected regime’s total disregard for the ‘constitutional limits’ on its power (Zakaria, 1997, p. 22)—and political solution to the ethnic conflict. The pertinent questions are: How did democracy turn illiberal, and why does the political elite continue to nurture an illiberal polity? Why is the talk of political solution centred on the 13th Amendment to the constitution? What are the barriers to political reform and permanent peace?
Sri Lanka’s Parliamentary Democracy, 1948–1977
Sri Lanka has a long tradition of being a democracy, but its poor quality is ostensibly a negative trait. With the introduction of a universal adult franchise in 1931 and the adoption of parliamentary democracy under a secular constitution in 1948, the country chose to chart a liberal democratic path in the post-colonial period. But the rise of linguistic nationalism buttressed by a virulent electoral populism in the mid-1950s had unleashed a powerful force to derail the process. The idea of a liberal Sri Lanka, therefore, became short-lived. Yet, the country enjoyed a positive image mainly because of the regular elections, smooth transfer of power to the winning party, and the 1948 constitution that incorporated certain principles of liberal democracy. Until 1972, at least notionally, secularism was central to the state’s identity because, under the Constitution of 1948, it did not legally patronize any religion. Further, thanks to the state leadership, politics itself did not yield much space for religion till the mid-1950s. D. S. Senanayake, the first Prime Minister, stood for the separation of religion from politics. While he had succeeded to a large extent in keeping the Buddhist monks out of politics, his successors since 1956 have accommodated them in the polity as an interest group and succumbed to their pressure. As the nexus between politics and Buddhist religion grew strong to give rise to political Buddhism, there emerged a strong Buddhist activism to influence the political process (see Wriggins, 1960, pp. 193–210, 342–348).
A progressive provision of the 1948 Constitution had been section 29(2) which ensured freedom to practice any religion and equal treatment of all religions and communities. It restrained the Parliament from enacting legislation to impose disabilities or restrictions on one community while protecting or privileging others (see Wilson, 1974, pp. 206–207). This was considered as an unalterable provision, but it turned out to be an easily violable one. During 1948–1949, the D. S. Senanayake government passed three legislations—the Ceylon Citizenship Act, Indian and Pakistani Residents (Citizenship) Act, and Ceylon (Parliamentary Election) Amendment Act—which disenfranchised and rendered lakhs of people of Indian origin, known as Indian Tamils, stateless. When the Acts were challenged on the ground that they contravened section 29(2) of the constitution, the Supreme Court held that disenfranchisement and statelessness of the Indian Tamils were not necessarily the legal consequence of the Acts as it would have happened to any community (see Wilson, 1974, p. 207). The state’s citizenship policy aimed at discriminating a vulnerable section of the population marked the first step towards constructing a majoritarian nationalism. Since 1956, capitalizing on this development, the Sinhalese leaders have openly used ethnic populism as a strategy for electoral mobilization. If the enactment of the Sinhalese-only official language Act in 1956, virtually marking the triumph of linguistic nationalism, laid the foundation for the majoritarian state, the foremost place given to Buddhism under the 1972 Constitution changed its character into a semi-theocracy. As religion and language formed the cornerstone of Sinhalese nationalism, the Sri Lankan state became a full-blown Sinhalese Buddhist majoritarian by the early 1970s. There emerged an intimate link between illiberalism characterizing the polity and the majoritarian policies of the state. Each phenomenon tended to strengthen the other to establish an illiberal democracy in an ethnic majoritarian state.
This was the hallmark of the first republican constitution (1972) which declared that the state and Buddhism were inseparable, and it was the duty of the former to protect and foster the latter (Article 6). The other religions were denied the same status and protection. Centralization of state power became a constitutionally sanctioned political project that every successive regime enthusiastically pursued. For this, the unitary constitutional order, unveiled in 1972, came as a handy political tool. Together with Buddhism and the Sinhalese language, the unitarian principles formed the basis of the state’s majoritarian ideology. By upholding parliamentary sovereignty, the constitution caused a major power shift to make the National State Assembly (a unicameral legislature) supreme. But the actual beneficiary was the real executive—Prime Minister—who, in the absence of separation of powers under the constitution, and by virtue of his membership in Parliament, controlled the legislative process, and vested in him an ‘undisturbed authority’ (Wilson, 1974, p. 255). Thus, the supreme body that embodied the sovereign will of people had become, in functional terms, an appendage to the executive. Then, there was a provision to empower the executive to make emergency regulations, which could override or suspend any law except the constitution. With the abolition of judicial review and the Senate (upper house), the system of checks and balances that existed under the Constitution of 1948 was weakened. The judiciary’s weak position in the face of the dominance of legislature and executive and the absence of mechanisms for the protection of fundamental rights led to a steep decline of liberal democracy.
Political Development in the 1980s: Consolidation of the Presidential System
Though the 1972 Constitution was short-lived, its illiberal spirit continued to guide the process of constitution-making in 1978. The second republican constitution (1978), which created a far more centralized political system under the executive presidency, has built a strong edifice for illiberalism as the guiding principle of the state. While retaining the earlier constitutional provisions that gave the unitary Sri Lankan state a majoritarian (Sinhalese Buddhist) identity, the 1978 Constitution has restructured the political system that is devoid of checks and balances. The political architect of this constitutional project was J. R. Jayewardene, the first executive president (1977–1988), whose self-fashioning narratives in a book,
Such self-fashioning narratives reveal Jayewardene’s inner political mindset. As someone who deeply admired Lee Kuan Yew, Singapore’s most powerful elder statesman who pursued hard-headed policies to accelerate economic development at the cost of liberal democratic rights, he liked to enjoy as the real executive unlimited powers without accountability. The establishment of a strong, powerful and directly elected executive presidency under the 1978 Constitution was very much along the lines of the narratives of power, hierarchy and identity in
No doubt, the constitution is the source of the President’s powers, but he uses the instrument of politics to gain absolute powers without accountability. Under the constitution, the President is both the head of the state and government and is also vested with emergency powers under the Public Security Ordinance. He is the central decision-making authority, more particularly when his party enjoys a majority in Parliament, which ensures his candidate’s appointment as Prime Minister. In the event of general elections resulting in a cohabitation government, under which the President and the Prime Minister (whose party commands a parliamentary majority) belong to two different parties, a power tussle between the two is a distinct possibility. In either situation, the President can allocate any ministry to himself. The makers of the constitution did not foresee the possibility of a cohabitation government as there is no mechanism provided for resolving differences in the government, except giving the President brute powers to dissolve the Parliament after a particular period. As the constitution has created a skewed institutional structure, without checks and balances and collective responsibility, the state has emerged as a constitutionally sanctioned illiberal entity. A relatively stronger bill of rights and provision for judicial determination of any bill (whether it is consistent or inconsistent with the constitution) have not made the governance system liberal. While the bill of rights is limited in scope and its enjoyment is subject to numerous restrictions, the judiciary does not enjoy independence and supremacy (see chapters in Welikala, 2015).
As power revolves around one leader, namely, the President, his personality and style of functioning hold relevance to the exercise and maximization of powers. In personalizing power and authority, President Jayewardene had set an unparalleled example. He developed a new political culture in which personality and loyalty were made supreme over institutional integrity and constitutional morality. A series of controversial decisions his regime made during 1978–1982 strengthened his unchallenged position at the cost of democracy. In 1978, the Parliament passed a draconian piece of legislation (Special Presidential Commission of Inquiry Act) to target the opposition leaders. A three-member commission appointed by the President under the Act to inquire into ‘abuse of power’ during the previous United Front government (1970–1977) found Prime Minister Sirimavo Bandaranaike guilty and in 1980 recommended stripping of her civic rights for seven years. When the Supreme Court declared the Commission of Inquiry with retrospective powers
Jayewardene’s victory (with 52.91% of votes) in the October 1982 presidential election (preponed from February 1984) ensured continuity in his illiberal rule for the next six years (till January 1989). Soon, his government took the most undemocratic decision to extend the tenure of Parliament for another six years (till 4 August 1989) through a referendum. Repealing Article 161 of the constitution, the Parliament passed the Fourth Amendment in October 1982 to this effect, which was approved by 54.66% of voters in a national referendum in December 1982. The preamble of the Amendment claimed that people reaffirmed their faith in the UNP regime’s ‘unremitting efforts to ensure a prosperous, just and free society’, and an extended term for the Parliament would ensure political stability so necessary for advancing their aspirations. While the UNP government invoked the uncanny fear of an anti-democratic Naxalite-type movement as justification for its decision (Athulathmudali, 1984), the real reason was that the ruling party wanted to maintain its five-sixths majority in Parliament and was not hopeful of winning even a two-thirds majority in a fresh general election under the proportional representation system introduced by the 1978 Constitution (de Silva, 1984, pp. 44–48). Thus, the government did not want to confront a ‘powerful opposition’ in Parliament, and by taking the referendum route, the President sought a political sanction for constitutional ‘dictatorship’ (Warnapala, 1983, p. 17).
Being the chief architect of the constitution and the first executive President to wield absolute powers, Jayewardene was in every sense the role model for many of his successors. He inspired them to be thoroughly illiberal and a harbinger of electoral autocracy. It was none other than President Ranasinghe Premadasa (1989–1993) who, after Jayewardene’s retirement from politics, provided the continuity to the illiberal constitutional order and the practice of leadership-centric politics. As Prime Minister (1978–1989) and chairman of the Parliamentary Committee that drafted the 1978 Constitution, Premadasa helped Jayewardene to bring his ideas and policies to fruition. He became a trusted lieutenant of Jayewardene, and truly the heir to his legacies. This was recognized during the December 1988 presidential election when Jayewardene proposed Premadasa as the UNP candidate and got two other main aspirants—Lalith Athulathmudali and Gamini Dissanayake—for the post to second his name. Premadasa’s narrow victory (50.4% of votes) in the election marred by violence revealed that he could neither match up to the Machiavellian leadership of Jayewardene nor his popularity in urban Sinhalese society. Worse, his humble social origin and urban middle-class background had denied him recognition as a Colombo power elite. Yet, he was seen as an astute and ruthless leader who had maintained a highly coercive state structure but failed to maintain unity in the party. However, his social welfare measures not only broadened the UNP’s rural support base but also earned him some degree of popularity (Jayasuriya, 2005, pp. 22–23). What blemished Premadasa’s image was the ruthless response of his government to the mindless violence unleashed during 1987–1989 by the Janatha Vimukthi Peramuna (JVP)—a radical Sinhalese nationalist and Marxist-Leninist group—which launched an insurrection first in 1971 (Moore, 1993). He had used powers vested in him to turn Sri Lanka into a national security state that showed complete disregard for human rights.
The Polity Since the 1980s
The end of the UNP’s 17-year-long rule in 1994 augured well for a significant political change, but its impact on the political system was disappointingly limited. In seeking to restore a liberal democratic order, Sri Lankans pinned much hope on Sri Lanka Freedom Party (SLFP) leader Chandrika Bandaranaike Kumaratunga, who steered the People’s Alliance (PA) to victory in the parliamentary and presidential elections in 1994. As a progressive leader who denounced the regressive political culture and legacies of the UNP rule, Kumaratunga’s presidency (1994–2005) saw a significant reopening of the democratic space and shunning of extreme tendencies to centralize state power. It had triggered a debate on the ills plaguing the polity and the ensuing political narratives underlined the need for a comprehensive constitutional reform.
Throughout her tenure as President, Kumaratunga made rather an unsuccessful effort to reform the political system. The Constitutional Proposals of 2000, incorporating provisions for greater devolution of powers to the proposed Regional Councils and reforming the presidential system, were intended to create a balanced polity. Though the government compromised on the original reform proposals under pressure from the Sinhalese nationalists and introduced in Parliament a much-diluted draft constitution as a bill in August 2000, its reform agenda fell through because of a lack of parliamentary support (see Uyangoda, 2013). The UNP turned a spoiler as it engineered dissension in the ruling coalition and caused mayhem in Parliament to scuttle the entire process. The President subsequently withdrew the bill and, then, tried to hold a referendum on constitutional reform. In December 2001, a short-lived (about two years) cohabitation government was formed, under which UNP leader Ranil Wickremesinghe became Prime Minister and his arch-rival Kumaratunga remained the President. It set off a bitter power rivalry between them. Their acrimonious relationship eventually cost the cohabitation regime. The President asserted or abused her constitutional authority by dissolving the Parliament in February 2004 (Jayasuriya, 2005, pp. 88–91).
Competitive politics thus helped nurture the illiberal constitutional order and, worse, led to the rise of a hard-headed electoral autocratic regime under President Mahinda Rajapaksa (2005–2015). Sri Lanka thus entered a new phase of heightened illiberalism, causing fear and anxiety in society. Rajapaksa’s style of governance, resembling Jayewardene’s, provoked critics to describe his regime as ‘soft authoritarian’ (DeVotta, 2010) and ‘populist authoritarian’ (Roberts, 2015). In some way, he awfully even surpassed Jayewardene—the sole fountainhead of illiberalism—in maximizing his power and authority, and arbitrary use of state power. Rajapaksa borrowed the cultural context, provided by veneration of kings, from Jayewardene who had believed that ‘he could behave like a monarch with all the trappings and symbols of executive power’. This was taken to a different level by Rajapaksa who liked to be seen unabashedly as ‘King Mahinda’ (Coomaraswamy, 2015, p. 34). His supporters turned sycophants considered him as ‘modern day [King] Dutugemunu’ and clothed him with ‘the honorifics bestowed on famous Sinhala kings in the past’ (Roberts, 2015, p. 651). By openly positioning himself as an ultra-Sinhalese nationalist leader who appealed to the rural Sinhalese, he reaped huge electoral dividends, as was evident in his party’s massive victory in both the presidential and parliamentary elections of 2010.
Rajapaksa’s trait of extreme illiberalism had some peculiar characteristics that were unique to his regime. Using the political expediencies of civil war, he successfully concentrated absolute powers in him. Rampant corruption and patronage gave rise to a neo-patrimonial system, under which the President used state resources to secure the loyalty of politicians even as they fleeced the state (DeVotta, 2010, p. 336). The military emerged as a pivotal actor to influence political decisions and, worse, the state became a full-blown national security institution. While making policies to cause democratic backsliding, the President was emboldened by the state’s decisive but pyrrhic victory against the LTTE in May 2009. A large section of the Sinhalese community elevated Rajapaksa to the honorific status of ‘war hero’. He too liked the nation to celebrate him so. That he enjoyed popular support was evident in the 2010 presidential election, in that he secured a grand victory (with 57.88% of votes) against the Opposition candidate, General Sarath Fonseka (40.15%), who commanded the Sri Lankan army in the battle against the Tigers.
The twin (military and electoral) victories in quick succession provided a political milieu in which Rajapaksa had pursued his soft authoritarian policies. A decisive step in the direction of extreme centralization was the adoption of the most regressive 18th Amendment, under which the two-term limit on candidates seeking election to the presidency was removed (thereby allowing the incumbent President to contest unlimited times), and the important checks on the exercise of executive powers were repealed. It replaced a ten-member Constitutional Council with a five-member Parliamentary Council, which gave the President the unfettered power to make all key public service appointments. He exercised considerable control over the entire legal system. The Amendment undermined the autonomy of national institutions like the Election Commission, which was deprived of powers to prevent the abuse of state machinery and to maintain the integrity of the electoral process. Finally, the executive-legislature separation became narrow as it was incumbent on the President to attend the Parliament once in every three months. In sum, the concentration of absolute powers in the executive led to a far worse system of governance than what the 1978 Constitution originally established (see Jayakody, n.d., pp. 23–60).
Among all the state institutions, the judiciary bore the maximum brunt of the illiberal (dis)order that the Rajapaksa regime fashioned. That it remained at the mercy of the executive-controlled legislature was evident in January 2013 when Chief Justice Shirani Bandaranayake, some of whose judgements went against the government, was first impeached in force on corruption charges by the Parliament and then removed by the President. A typical case of an assault on judicial independence, the action came in for a lot of flak from the legal fraternity and the UN Human Rights Council. The executive power had intruded into other spheres too. With the deepening of corruption and nepotism, since 2010, the neo-patrimonial regime gained more strength. A strong executive-military nexus was established through the appointment of many retired military officers in government services. No criticism of the military was tolerated. The regime muzzled the media, and those who reported on crimes of and corruption in the military and government were not spared. The attack on the rule of law and severe constraints imposed on civil liberties sent a chilling message to all those who dreamt about liberal democracy in their country. People who sided with the government were considered as patriots, and all those who were critical of its leaders were branded traitors. The regime had invoked nationalist instincts and also built perceived internal and external threats to Sri Lanka’s sovereignty. The Opposition appeared to have been thoroughly undermined. Yet, there were beneficiaries of the neo-patrimonial regime. All those who were coopted into the system became part of the ruling clique that disregarded the rule of law (DeVotta, 2010, pp. 331–43).
The Rajapaksa regime’s autocracy reached an intolerable level before its popularity wanned by 2014. Once revered in Sinhalese society for ending the civil war, in a matter of five years, the President was largely reviled. Yet, he seemed to be unaware of the ground reality. Confident of winning his third term, Rajapaksa called for an early presidential election (one year ahead of schedule) in January 2015. His misrule galvanized the main opposition parties which rallied behind Maithripala Sirisena—a minister in Rajapaksa’s cabinet, who defected just before the election. Contesting on the plank of good governance, Sirisena scored a surprise victory (51.28% of votes) over Rajapaksa (47.58%). Teaming up with Ranil Wickremesinghe, who was made Prime Minister, the coalition led by both leaders won a simple majority in the general elections of 2015. The change of regime had obviously raised people’s expectations for a constitutional reform.
Amending the constitution in April 2015 was a step in the right direction. The 19th Amendment sought to remove the regressive principles of the previous amendment and incorporated some provisions to rein in the President’s powers and functions. First, it reduced his tenure from six to five years and restored the original constitutional provision imposing a two-term limit. Second, the President’s power to remove the Prime Minister at his discretion was abolished. Now, the former needed to act on the latter’s advice while appointing or removing any minister. Further, the President was given additional duties to protect the constitution, promote national reconciliation and integration, ensure the proper functioning of the Constitutional Council, and create conditions for holding free and fair elections and referendums. Finally, the immunity given to the President was limited only to civil and criminal proceedings (Centre for Policy Alternatives [CPA], May 2015, pp. 6–9). By restoring the Constitutional Council, the Amendment removed the President’s discretionary powers to appoint members and chairpersons of the key national commissions. Further, while reducing the Parliament’s tenure from six to five years, the Amendment abolished the executive President’s arbitrary power to dissolve it at will. Now, its dissolution could be carried out only after the expiration of four and a half years, unless a parliamentary resolution supported by two-thirds of members make a request for an early dissolution. Further, the constitutional provision permitting the government to pass urgent bills (requiring the Supreme Court to decide on their constitutionality in 24–72 hours) was repealed.
The 19th Amendment was the first major constitutional reform, since 1978, to remove some of the structural sources of illiberalism. Yet, certainly, it was not a complete exercise, and what it achieved was far less than what a liberal constitutional order required. The original framework and vision of the Amendment were broad to bring about a structural change, by shifting some of the core executive powers from the President to the Prime Minister. It envisioned to make the latter the head of the cabinet with powers to decide the number of ministers, their portfolios, and even change them at any time (Centre for Policy Alternatives [CPA], May 2015, p. 4). But the government had to remove two relevant provisions from the Amendment Bill because the Supreme Court determined that they needed the citizens’ approval in a referendum. Thus, the first step towards the much-talked and desired abolition of the Presidency was aborted.
Nevertheless, the Amendment tended to bring about a modicum of change in power distribution among the core institutions. While the liberal constituency was happy with the de-concentration of executive powers, the political forces that built and supported the edifice of illiberalism seemed disappointed. But the political gains of the Amendment, albeit limited, became short-lived. The bitter power rivalry, stemming from the redistribution of executive powers, between the President and the Prime Minister led to an acute political crisis in 2018. It destabilized the co-habitation government, and the coalition was in a complete disarray. Forgetting that he willingly agreed to shed his executive powers and, in April 2015, lobbied with the parliamentarians to muster two-thirds support for the Amendment, in three years, Sirisena developed a deep sense of regret and put the blame on the 19th Amendment. Calling for its repeal, he lamented that passing the 19th Amendment was the ‘biggest mistake’ of the government. It caused ‘instability’ (Indian Express, 23 June 2019). By October 2018, the crisis unfolded a political drama. First, Sirisena sacked Wickremesinghe and appointed his rival, Mahinda Rajapaksa, as Prime Minister. Then, on 9 November 2018, by a Presidential decree, the Parliament was dissolved, and after it was overturned by the Supreme Court, the President was compelled to reappoint Wickremesinghe as Prime Minister in December 2018. Thus, the unpopular co-habitation government survived till November 2019, but its political credibility hit rock bottom after the terrorist attacks on Easter Sunday (21 April 2019) killed about 270 people.
Against this backdrop, Gotabaya Rajapaksa was voted to power in the Presidential election of November 2019. His victory (with 52.25% of votes) over UNP leader Sajith Premadasa (41.99%) heralded a negative political change. Like his elder brother Mahinda Rajapaksa, the new President showed a deep commitment to illiberalism. Emulating the regressive policies of his brother, Gotabaya Rajapaksa’s regime (2019–2022) passed the 20th Amendment in October 2020 to repeal the progressive changes made in the constitution by the previous government. He was emboldened to take such an unpopular measure by a huge (145 seats) victory the ruling Sri Lanka Podujana Peramuna (SLPP) secured in the August 2020 general elections.
The 20th Amendment formed a source from which President Gotabaya Rajapaksa drew powers to build a strong executive. It shifted back many executive powers from the Prime Minister to the President. Particularly, the latter regained the discretionary power to remove the former at any time. Both the Parliament and judiciary apparently became weak, and the immunity given to the President was expanded to include actions beyond the civil and criminal proceedings. The Constitutional Council was abolished, and in its place, the Parliamentary Council was restored, with powers to make observations, and not recommendations, on the appointment of top officials to the key national bodies. The President could ignore any of its observations. Unless requested by the legislators, he could dissolve the Parliament only after the expiration of two and a half years. While restoring the provision for the introduction of urgent bills, the Amendment gave just 24 hours for the Supreme Court to determine its constitutional validity. The independence of the judiciary was undermined as the President enjoyed discretionary powers to appoint judges (Centre for Policy Alternatives [CPA], 2021, pp. 10–13). Gotabaya Rajapaksa, who termed the 19th Amendment an obstacle to governance, national security and development, brought back the worst days of the soft authoritarian rule of his brother. But the system that he built to make him the most powerful President caused a deep crisis of governance. Some of his ill-conceived decisions contributed to an unprecedented economic crisis in 2022, resulting in a massive political unrest against his regime. Falling from the grace, the President was forced to flee the country and finally step down from office in July 2022.
Ranil Wickremasinghe’s election, by the legislators, as President (since July 2022) has renewed hope for a constitutional reform. But his government’s ruthless actions in the wake of the youth protest caused a strong sense of disappointment, rather than optimism. Acknowledging that the 20th Amendment created an institutional imbalance by concentrating powers in the President, the regime embarked on a limited reform without much consequences for the polity. The 21st Amendment has not changed much of the powers vested in the President. While retaining the legislative process, it restored the Constitutional Council to its previous position under the 19th Amendment. In all, there is so little for Sri Lanka’s liberal constituency to feel happy about the latest Amendment. Like the regimes of Rajapaksas, who had exercised powers in an absolute manner to earn a soft authoritarian image, the present President enjoys almost the same powers but uses them in ways to avoid a negative political outlook.
Illiberalism is thus nurtured as a political project, and its manifested effect on the polity is there for all Sri Lankans to experience. Evidently, it has evoked different responses since the 1980s: While some political leaders have readily imbibed the regressive influence of the 1980s, others have tried to resist it by embarking on a limited reform of the political system. But no leader has ever rejected illiberalism altogether and succeeded in establishing a liberal political order.
Conflict and Peace
The rise of illiberalism in the 1980s was accompanied by the escalation of the ethnic conflict since mid-1983. As the chief architect of the country’s civil war against the Tamil militants, President Jayewardene set the goal of total military victory. The draconian Prevention of Terrorism Act and Emergency Regulations were widely used in pursuit of the military objective. As the civil war aroused the geopolitical interest and concerns of India and some extra-regional powers, its internationalization became inevitable. India emerged as the dominant and influential external actor whose two-pronged intervention strategy of persuasion and coercion against both the Sri Lankan government and Tamil groups resulted in a peace accord in July 1987. The accord and the letters exchanged between Prime Minister Rajiv Gandhi and President Jayewardene gave a framework for peace and spelled out the extent to which both countries could accommodate each other’s security interests (see Muni 1993).
In 1987, Sri Lanka established a Provincial Council system, and devolved powers under the 13th Constitutional Amendment. This marked a limited state reform largely under external (Indian) pressure, but the functioning of Provincial Councils and the limited power-sharing arrangement envisaged in the Amendment show that Sri Lanka’s unitary and centralized state structure have remained unaltered (Sahadevan, 2012, p. 66). In the end, the political solution that India helped to evolve has left both the Sinhalese and Sri Lankan Tamil leaders unhappy. Decrying its direct participant role in the civil war, the Sinhalese nationalists considered India as a hegemon who extracted security concessions from a weak Sri Lanka, the Indian Peace-Keeping Force (IPKF) was termed an army of occupation, and the 13th Amendment was portrayed as an India-imposed legislation. During 1987–1990 the Sinhalese nationalists, chauvinists and radicals joined together to launch a massive anti-India campaign.
Many years after India ended its direct participant role, but not its interest, in the ethnic conflict, memories of the 1980s are kept alive in Sinhalese society and occasionally used for supporting or opposing any political decision on the question of peace. Thus, the past incidents involving India (more particularly, its clandestine support to the Tamil militants, violation of Sri Lanka’s airspace in 1987, Colombo’s security concessions to New Delhi, deployment of the IPKF, etc.) have been converted into political fodder, to be used intermittently by the Sinhalese parties and nationalists to advance their electoral or ethnic interests. Despite a significant improvement in bilateral relations over the years, there is seemingly no complete change in their perception of India being a hegemonic power that once threatened their country’s sovereignty and imposed a peace accord to suit its regional security interests. In their view, India’s policy is based on a parochial consideration of privileging the Sri Lankan Tamils at the cost of the Sinhalese interest and the imposition of the 13th Amendment was aimed at undermining Sri Lanka’s unitary state. This explains why the Sinhalese nationalists have denounced India’s occasional demand for a full implementation of the Amendment. While the Sinhalese see India as an external force to weaken their nationalism, the Sri Lankan Tamils consider it as their kin-state whose categorical support is crucial for achieving their rights as equal citizens of Sri Lanka (see Sahadevan, 2021, pp. 179–89).
The political solution institutionalized in 1987 has caused discontent across the ethnic divide. Taking a maximalist position, the Sinhalese nationalists consider the Provincial Council system and power-sharing under the 13th Amendment as generous concessions given to the Sri Lankan Tamils with the expectation, in return, that they renounce their secessionist goal and prove their loyalty to the state. But the minorities take a minimalist position by viewing the solution as insufficient to meet their legitimate aspirations. Disappointingly, successive governments since 1987 have devolved less powers than what the 13th Amendment has legally sanctioned (13 A Minus). At the same time, going beyond the Amendment, the Sri Lankan Tamil leaders have demanded a greater autonomy solution (13 A Plus). The approach of various governments, however, reveals that the 13th Amendment has set the maximum limit for power-sharing and transcending it is bound to cause a political backlash. In short, the framework developed in the 1980s defines the ambit of political solution now.
President Kumaratunga was the first leader who tried to confront the past decision by adopting a fresh, progressive approach to peace. Her proposals for devolution and constitutional reform envisioned to change the archaic ambit of the political solution, in favour of a new framework, under which substantive powers were to be devolved at the regional level (see Uyangoda, 2013). A concerted opposition to the proposals that cost her peace initiatives shows the extent to which the peace policy of the 1980s is entrenched in the polity. For the Sinhalese nationalist-political class, a solution beyond the 13th Amendment is unacceptable. Since 2005, President Mahinda Rajapaksa was one leader who looked at the Amendment with such disdain. Though he set up a forum, All Party Representatives Committee, in 2006 to find a political solution, the exercise proved unproductive and meaningless. After winning the civil war in 2009, he ruled out a full implementation of the 13th Amendment but spoke in vague terms of a home-grown solution without spelling out its framework and principles. By articulating such ideas as devolution to people at the grassroots and peace through development (see Marcelline & Uyangoda, 2013), he indicated his desire to readopt the District Development Council system introduced in 1980. A staunch Sinhalese nationalist, who did not hide his penchant for a monolithic society and monoethnic state, Rajapaksa did not see the political imperative for permanent peace in the post-civil war period.
Importantly, the Sirisena-Wickremesinghe government did not show antipathy towards the 13th Amendment, but it had no political will or wherewithal to deepen the devolution of powers to the provinces. On this, the Gotabaya Rajapaksa government’s stand was one of keeping the issue off the agenda altogether. In early 2023, President Wickremesinghe vowed to implement the Amendment in full, but he faced stiff resistance from the Sinhalese nationalists. The denial of a permanent political solution suggests that peace is made an empty slogan, and the agenda of constitutional reform has turned out to be a political sham.
A Hostage to the Status Quo?
The perpetuation of an illiberal political system, established by the Jayewardene government, raises a question: Has the polity become a hostage to the status quo? The trends in politics since the 1980s reveal that the power of the defenders of the status quo far outweighs the capacity of its challengers who seek a significant political change. Since illiberalism is fundamentally linked to the extreme concentration of powers in the chief executive, the state reform agenda focuses on total abolition or restructuring of the presidency. Herein lies the major challenge. No incumbent President has shown strong interest and determination to shed the excessive executive powers and evolve a consensus among the political leaders on building a liberal polity. Even if a well-meaning effort is made for a political consensus, there is little or no hope of its success. Sri Lanka’s polity is so deeply polarized that the competing parties see every issue through the prism of electoral politics, and unabashedly want to promote their particular political interest at the cost of the common good of society. A consensus is necessitated by the existing political and procedural barriers embedded in the system: For a constitutional reform to succeed, a two-thirds parliamentary support and a majority of the citizens’ endorsement of the proposal in a national referendum are mandatory. Alternatively, a ruling dispensation could seek a popular mandate in general elections for drafting a new constitution, and then convert the Parliament into a Constituent Assembly. However, as the past experience shows, both the strategies or exercises need an unequivocal support of all the parties. President Kumaratunga’s state reform initiative failed due to a lack of sufficient consensus among the political leaders (see Uyangoda, 2013, pp. 154–179).
Thus, the constitution has trapped the polity in illiberalism and helped maintain the status quo in the political system. In the process, the 1978 Constitution itself has become deeply entrenched in the nation. Given Sri Lanka’s political culture of tolerating and accommodating hegemony and power, political reform is a task assigned to the top leadership. It is he who sets the agenda and decides on the strategies. In such a top-down and leader-driven process, there is little or no role for non-political forces. Sri Lanka’s civil society is not seen at the forefront of setting or pushing a reform agenda onto the political leaders. The absence of an organized movement or a public demand for a comprehensive state reform indicates that society in general is willing to tolerate, if not accept, the present illiberal system. Citizens are, thus, largely seen as the agents of the status quo and not necessarily its change.
As the legacy of India’s role in the island’s conflict endures, the 13th Amendment has remained a national issue on which the southern Sinhalese polity maintains a consensual stand. The peace approach of the 1980s has set the limit on accommodating the minority interests. As mentioned earlier, the Sinhalese leaders abhor the Amendment because, in their view, it threatens their majoritarian nationalism and undermines the unitary state structure. Yet, its nullification is not on their political agenda due to fears of sparking an outcry in Sri Lankan Tamil society and a backlash in India. Under the circumstances, the Sinhalese political elite prefers to maintain a façade of autonomy solution even as they refuse the full implementation of the Amendment.
Conclusion
The article recounts how Sri Lanka’s present polity has been fashioned by the influence of the recent past. To be sure, political development in the 1980s has left a strong legacy for the polity to grapple with now. At one level, the polity has not been able to transform itself progressively; it has instead resisted the pressure for change and sought to maintain the status quo. At another, outcomes of political development in the 1980s are allowed to define the agenda of politics, determine the party and regime interests, and frame the political narratives. The past as a major influencing factor is found in two key issues: democracy, and peace and conflict. As discussed, over the years the island’s democracy has degenerated into an illiberal system, in bringing this decline the power-crazed leaders have played a significant role. Illiberalism rests on the skewed structure of the 1978 Constitution; the Presidents who have shown soft authoritarian tendencies draw power, in the first instance, from the constitution itself and, then, misused and abused at will the power and authority vested in their office. This underlines the pressing need for a major constitutional reform, but the task is fraught with huge challenges.
The leaders in power are the ones who pose the first line of challenge. They have developed a strong vested interest in nurturing an illiberal order because it guarantees them absolute powers. An opposition leader demands what he has rejected while he was in power. Yet, both the ruling and opposition leaders have a shared interest in failing every peace initiative or denying a political solution. While political hypocrisy thus characterizes Sri Lanka’s political culture, the practice of constitutional immoralism is generally tolerated in society. No doubt, the polity is susceptible to regressive influence and is unable to break with the past mainly because the leaders who conduct the political process and drive a change are seen as a barrier to political transformation.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.