WEBINAR 7: INDIA & SRI LANKA - COVID-19 and Abusive Constitutional Change in Sri Lanka
Ayesha WIJAYALATH
23 November 2020
In Albert Camus’ La Peste, Dr. Rieux, reflecting on the plague in the city of Oran in Algeria, says, ‘there's no question of heroism in all this. It’s a matter of common decency. That's an idea which may make some people smile, but the only means of righting a plague is, common decency.’ The job, according to Dr Rieux, is relieving human suffering amidst the deadly crisis. In this grave but collective destiny, what is the government’s responsibility towards citizens, and particularly that of the executive? Are they acting ‘decently’ in fulfilling their roles? With these questions in mind, this post looks at executive powers in times of crisis, especially focusing on Sri Lanka’s battle with the COVID-19 pandemic and its implications for the country’s democratic governance.
In this post, I aim to trace the systematic attempts at executive power-grabbing by dismantling the already fragile constitutional democracy of Sri Lanka, and how exogenous events such as the pandemic provides the perfect pretext in this process. The post also engages in the debate about the role of the executive at times of crisis, but focuses more particularly on abusive constitutional change resulting from the enactment of the 20th Amendment (20A) to the Constitution of Sri Lanka.
Background
When the first COVID-19 cases were identified in Sri Lanka, in the early months of 2020, the government was quick to implement public health surveillance through contact tracing, and to impose a lockdown, which successfully managed to curb the numbers compared to her South Asian neighbours. The military played a variety of roles in containing the crisis and has been duly lauded for its efforts. Yet, characterising the pandemic as a ‘war’, and the increasingly visible military presence in public, soon became unsettling, especially for minority communities in a post-war setting (given that the decades-long conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) only ended in 2009). Communal divisions were further aggravated when Muslim minorities were singled out and stigmatized as carriers of the virus. Presidential Task Forces, which prioritized military personnel in their composition, were established extra-constitutionally. Equally problematic was the way in which an indefinite curfew was imposed with no basis in law.
With the government in full control of the dissemination of information on crisis management, there was an official narrative of strong and successful leadership role in containing the virus. This soon turned into bravado, as a perfect guise to win public support for the ruling regime. Notwithstanding the pandemic, President Gotabaya Rajapakse decided to dissolve Parliament in preparation for elections. The president, rather than reconvening Parliament to better manage the crisis with due transparency and accountability, decided to proceed with the elections in anticipation of a resounding victory for his party.
The timing of the election also raised important constitutional issues but the Supreme Court was quick to dismiss these challenges without providing any reasons. Thus, the general election in August 2020 went ahead. It was a landslide victory, with the President’s party winning an unprecedented majority under the country’s proportional representation system.
Executive Power in Times of Crisis
Central to this victory lies the debate on executive powers at times of crisis. One narrative is based on the argument that a strong executive is essential for the control of resources and the deployment of armed forces in the effective management of the crisis. And in doing so, the governing constitutional principles may take a backseat, leaving room for the expansion of the executive power, on the basis that it can better handle widespread emergencies as opposed to a ‘messy’ democracy. Sri Lankans largely held this view when the initial government responses to COVID-19 proved successful. Moreover, this overwhelming public support for a strong executive came at a time when the previous regime, elected under the banner of restoring democracy, colossally failed to protect its citizens from the deadly Easter Sunday terrorist attacks last year.
The counter argument maintains that, even in times of crisis, the executive should be bound by constitutional controls despite temporary allowances for expansions of executive power. The crux of this argument is that a temporary expansion of executive power during a crisis, can soon become entrenched as a new normal. This would undermine democracy with lasting implications on the exercise of fundamental rights. This very argument gained traction in Sri Lanka as the pandemic brought opportunities to aggrandize executive power.
The 20th Amendment and its ‘Democracy-destabilizing’ Effects
After politically securing power during the pandemic, it did not take long for the President of Sri Lanka to entrench his powers constitutionally. Easily mustering the required two-thirds majority in Parliament, the 20A was recently passed, exacerbating the illiberal turn already underway before the pandemic.
The 20A undoes most of the democratic reforms introduced by the 19th Amendment that had significantly curbed the powers of an overpowering executive. Consequently, major risks of democratic retrogression have been raised with untrammelled powers vested in the president. For example, the Constitutional Council, which previously ensured a depoliticised public service appointment process by limiting the president’s powers during the process, was replaced by a Parliamentary Council whose observations have no binding effect upon the president. This process gives the president unfettered powers to appoint all judges of the superior court, including the Chief Justice, the Attorney-General, the Inspector General of Police, and members of independent commissions, thus compromising liberal democratic traditions and institutions.
Similarly, Sri Lanka’s parliamentary democracy is at stake given the president is no longer subject to stringent procedures pertaining to parliamentary dissolution, a mechanism that was frequently abused by past presidents and was a core issue during the 2018 constitutional crisis. Moreover, the Prime Minister has been reduced to a ceremonial role under 20A and can now be removed by the President unilaterally. These are but a few examples of a broad range of constitutional changes that fundamentally weakens the separation of powers, and undermines democracy and the rule of law. However, the Court’s resistance to restore full presidential immunity is noteworthy.
The 20A can broadly be characterised as an ‘abusive’ constitutional amendment. It is ‘abusive’ as it constitutionally entrenches authoritarianism and weakens other institutions. This distortion of constitutional norms poses significant challenges for future re-democratisation processes. The term ‘abusive constitutionalism’ refers to the use of formal constitutional amendment and constitutional replacement, as well as informal constitutional change through judicial decisions, to carry out constitutional change that entrenches the incumbent’s political power and weakens institutions such as courts that check such power. Thus, while the constitution and the amendments to it maintain an appearance of democracy, close scrutiny reveals its ‘democracy-destabilizing’ effects.
Executive Power and Abusive Constitutional Change
In Sri Lanka’s history of democratic constitutionalism, the twenty amendments since the promulgation of the 1978 constitution have played a fundamental role in the development of the country’s democratic institutions, and at times, have acted as critical junctures in defining Sri Lanka’s democratic trajectory. The amendments to the Constitution have included pro-democratic and democratic restoration amendments, especially in light of the 2015 democratic regime change after the elections that year (e.g. 19th Amendment).
Yet, the anti-democratic and abusive constitutional amendments (e.g. 18th Amendment) that were passed through formal democratic procedures, have also substantially undermined the democratic character of governance. The implications of these amendments are particularly crucial when judicial review is limited to pre-enactment review in Sri Lanka. Similarly, while no substantive limits on amendment are specified in the Constitution, the Supreme Court only has the mandate to review for constitutionality as regards adherence to procedural requirements.
The problem of abusive constitutional change through the use of the formal amendment procedure to expand the role of the President during extraordinary times is not a new phenomenon in Sri Lanka. In 1982, when ethnic tensions were brewing with calls for secession in the north by the Tamil minorities, the then president J.R. Jayawardene, taking advantage of his popularity in the south, advanced the date of presidential elections at the expiration of four years of the president’s six-year term by way of a Third Amendment to the constitution. The Court upheld the constitutionality of this amendment, highlighting that the people were being given an early opportunity to express their approval or disapproval of the president’s leadership.
The amendment that brought the most drastic changes to Sri Lanka’s constitutional order was the 18th Amendment (18A), which came at the conclusion of Sri Lanka’s thirty-year civil war. The end of the war warranted a major constitutional overhaul in terms of establishing an effective power-sharing mechanism and robust protections of fundamental rights to address the grievances of minorities. Instead, capitalizing on its war victory, the Government introduced the 18A which removed presidential term limits and limitations on presidential powers over the public service appointment process. When the 18A bill was challenged, the Court, construing franchise in a narrow sense, held that the elimination of term limits enhanced franchise by expanding the choice for voters. The Court held that this included the choice to vote the incumbent president and thereby failed to respond to fundamental theoretical objections to the bill.
The COVID-19 outbreak has, once again, provided ideal circumstances for exploitation and the consolidation of an autocratic rule in Sri Lanka. When the 20A Bill was introduced and was subsequently challenged in the Supreme Court for its democracy-defying effects, the petitioners argued that only the Constituent Assembly has a mandate to fundamentally alter the constitution, and therefore 20A is untenable as it makes substantive changes to the Constitution that affect the very basic constitutional framework. But the Court dismissed this ‘basic structure’ argument and found the doctrine, developed in Indian jurisprudence, unsustainable. As a result, the Court held the Bill to be consistent with the Constitution, save for a few clauses that may be passed without the requirement of a referendum once the necessary changes have been made to them at the committee stage. However, the Court’s resistance to restoring full presidential immunity is noteworthy.
What is significant in these three amendments, in their pursuit to enhance executive power, and the corresponding judicial decisions, is that they are abusive in character, not only in their attempts to subvert democracy through the formal amendment procedure but also in the way in which the Court decided these cases. ‘Abusive judicial review’, or the courts’ role in promoting anti-democratic practices as examined by David Landau and Rosalind Dixon, also demonstrates that one type of abusive judicial review is a ‘weak’ form where courts simply uphold authoritarian actions.
As evinced in the 20A decision, this judicial deference provides the much-needed legitimacy for the problematic constitutional amendment to be accepted both domestically and internationally, by indicating its compliance with the existing constitutional order. Thus, the courts in tandem with the political branches have set the wheels in motion towards democratic decay in Sri Lanka. Central to this judicial deference is the weak institutional autonomy of the Sri Lankan judiciary and its limited mandate for judicial review. As a result, the Court is wary to take decisions unfavourable to the political authority and the illegal impeachment of a former Chief Justice has further aggravated this reluctance.
Even though the 20A retained some provisions of the 19A, including presidential term-limits, the ruling regime intends to promulgate a new constitution which may entail the removal of whatever democratic principles through constitutional replacement that have been retained so far. Thus, as Radhika Coomaraswamy points out, the written constitution, which is the very source of liberal democratic values, has been subjected to replacement and amendments, leading to an instrumental use of constitutionalism to capture state power in a manner seen across South Asia. This is, in effect, a form of usurpation of constitutional ideology.
Amidst these constitutional reforms, the current pandemic situation in Sri Lanka has also reached alarming proportions with new COVID-19 clusters emerging in different parts of the island. The government’s approach, using ‘alternative facts’ when reporting COVID-19 numbers, and affirming zero-community transmission based on minimal testing, has impacted the spread of the novel coronavirus. Risking public health, national security, and thereby, the national economy in order to proceed with elections and constitutionally entrench the executive hold on power has little to do with managing the crisis and truly calls into question the ‘decency’ of the way in which the executive is doing his job during this pandemic.
Ayesha Wijayalath is a PhD candidate in UNSW Law and is part of the UNSW Scientia PhD project ‘A Liberal Response to Populist Constitutionalism’. Her research focuses on constraining abusive constitutional change in Sri Lanka and explores the unconstitutional constitutional amendment doctrine as a potential solution.
Prior to joining UNSW, Ayesha worked as a Research Associate in the Centre for Asian Legal Studies, National University of Singapore (NUS) and was an Associate Editor of the Asian Journal of Comparative Law. Ayesha graduated from NUS in 2017 with an LLM specialising in International and Comparative Law. She is also an Attorney-at-Law in Sri Lanka. She holds an MA in International Relations from the University of Colombo, Sri Lanka and a BA in French from the University of Kelaniya, Sri Lanka.
Ayesha takes a keen interest in comparative constitutional law, democracy and the rule of law, international humanitarian law and transitional justice.