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Constitutional Reform and Crisis in Sri Lanka Reproduced with the kind permission of The Daily Mirror and Awantha Artigala. Publisher: Centre for Policy Alternatives (CPA), Colombo, Sri Lanka Editor: Asanga Welikala ISBN number - ISBN978-955-4746-89-3 Bar code - 9 789554 746893 Copyright © | CPA and individual contributors Table of Contents Frontispiece – Awantha Artigala Table of Contents List of Contributors 5 Foreword – Paikiasothy Saravanamuttu 6 Editor’s Introduction – Asanga Welikala 8 1. The Siege: Inside 52 Days of Constitutional 22 Crisis in Sri Lanka – Dharisha Bastians 2. Revisiting the ‘Single-Issue Common-Candidate’ 89 Strategy: Successes and Failures – Kumar David 3. Making Sense of the October Conflict and 105 its Aftermath – Jayadeva Uyangoda 4. Possibilities of Democratic Constitutional Reforms 143 – Pradeep Peiris 5. Framing a Putsch: Twitter and Facebook in 179 Sri Lanka’s Constitutional Crisis – Sanjana Hattotuwa 6. Reform and Crisis: Reflections on the Culture of 240 Constitutional Democracy in Sri Lanka – Suri Ratnapala 7. The Sri Lankan Culture of Constitutional Law and 263 Politics: The Lessons of the Constitutional Reform Exercise of 2015-19 and the Constitutional Crisis of 2018 – Asanga Welikala Bibliography Contributors Dharisha Bastians is the Editor of The Sunday Observer Kumar David is a columnist for The Sunday Island Sanjana Hattotuwa is a PhD candidate of the University of Otago Pradeep Peiris is a Senior Lecturer in Politics and Public Policy at the University of Colombo Suri Ratnapala is Emeritus Professor of Law of the University of Queensland Jayadeva Uyangoda is Emeritus Professor of Political Science of the University of Colombo Asanga Welikala is a Lecturer in Public Law at the University of Edinburgh 5 Foreword The events following President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of former President Mahinda Rajapaksa as Prime Minister, the prorogation and dissolution of Parliament thereafter, plunged Sri Lanka into deep crisis in 2018. What had been attempted was a political coup without any legal or constitutional basis, as the Supreme Court held in its landmark judgment. It was also a blatant reversal of the promise of 2015 as it was a blatant dismissal of the Nineteenth Amendment to the Constitution overseen by President Sirisena. It was in short, an attempt at state capture, which the forces of democracy successfully resisted and may well have to again in the course of the impending presidential and parliamentary elections. The Centre for Policy Alternatives (CPA), as an organisation committed to liberal democracy in Sri Lanka, is proud to note that it was the only civil society organisation to file a petition in the Supreme Court against President Sirisena’s action. It is in this spirit that we publish Dr Asanga Welikala’s edited work on the crisis so that one of the most serious recent threats to democracy can be understood and analysed in terms of its particular relevance to the health of Sri Lankan democracy, and its wider significance in the face of populist authoritarianism. We 6 at CPA both hope and trust that this publication will be a definitive contribution to the literature on the evolution of Sri Lankan democracy, and the wider question of the fate of democracy, globally. I take this opportunity to thank Dr Welikala for his unstinting commitment to ensure the preparation and publication of the volume. We value the partnership with the Edinburgh Centre for Constitutional Law and the University of Edinburgh since 2015, which has permitted us to make a distinctive contribution to the recent debates on constitutional reform and crisis in Sri Lanka. Likewise, I wish to thank all the authors for their contributions, which ensure that the events of October- December 2018 and thereafter are treated from a variety of perspectives. My sincere thanks to Harshini Amarasinghe, Amalini De Sayrah and Charya Samarakoon at CPA who helped Dr Welikala to bring this publication out. Finally, I trust that the volume will enlighten the reader of the full significance of what happened and what should not happen again. Dr P. Saravanamuttu Executive Director 7 Editor’s Introduction On 8th January 2015, one of the more momentous changes of government took place in Sri Lanka when Maithripala Sirisena, the candidate of the common opposition, defeated President Mahinda Rajapaksa at a presidential election. In May 2009, Rajapaksa had won the war against the armed secessionist Liberation Tigers of Tamil Eelam (LTTE), an achievement that had eluded all previous presidents. In the aftermath of the war, Rajapaksa used the resulting popularity to not only win a series of elections, but also to concentrate power in himself and his family. He introduced the Eighteenth Amendment to the Constitution in 2010, which removed significant restraints on presidential power and removed the two-term limit on the office. For the first time in Sri Lanka, he also impeached Chief Justice Shirani Bandaranayake and had her replaced with a close legal advisor. The Rajapaksa regime’s governing style and ideology were informed by majoritarian ethnic chauvinism, a violent intolerance of dissent, and large-scale corruption and waste caused by a family-centred coterie of actors within nationalist politics and business. Due to this increasing authoritarianism and corruption, Rajapaksa’s undoubted popularity began to wane by 2014. 8 Around this time, the opposition to the Rajapaksa regime began to coalesce around a loose conglomeration of political parties, trades unions, and civil society organisations called the National Movement for Social Justice (NMSJ), whose figurehead was a charismatic senior Buddhist monk, the Ven. Maduluwawe Sobhitha Thera. This movement was eventually successful in building the broadest electoral coalition ever assembled against an incumbent President, around three propositions: (a) that all conceivable political and civil society forces must be united in opposition to the regime; (b) that the force of this unity must be channelled into a single presidential candidate against Rajapaksa; and (c) that the substantive platform of this coalition must be almost entirely, if not exclusively, on constitutional reforms to foster good governance in general, and abolish the executive presidential system in particular. In the last quarter of 2014, it became clear that this was a message that resonated with an electorate tiring of the Rajapaksa regime’s excesses, and it was given a major fillip when Maithripala Sirisena, then the general secretary of Rajapaksa’s party, defected to become the common opposition candidate. When Sirisena assumed the office of President, he appointed Ranil Wickremesinghe, then the Leader of the Opposition as the Prime Minister of a minority government. The Parliament 9 elected in 2010 continued with a pro-Rajapaksa majority, although some MPs in the party had defected with Sirisena and joined the minority government as ministers. The Sirisena- Wickremesinghe government then began to implement their 100-day reform programme, the centrepiece of which was to promulgate a constitutional amendment to curtail the powers of, or abolish outright, the executive presidency. The original draft bill embodying what became the Nineteenth Amendment to the Constitution envisaged abolition, or rather a transformation of the presidential into a cabinet executive, by the simple device of requiring the President to always act on the advice of the Prime Minister. There was however no parliamentary consensus on this, or even consensus within the reform coalition. The Supreme Court also held that such a change would require a referendum in addition to a two-thirds majority in Parliament. These two factors impelled the government to present a more modest bill, which, nevertheless, represented the most significant pruning of presidential powers since the 1978 Constitution was introduced. The Nineteenth Amendment as enacted in May 2015 by a two- thirds majority (which necessarily included Rajapaksa loyalists), restructured the presidency by empowering the Prime Minister within the political executive, by empowering Parliament against 10 the executive, by enabling a limited but significant avenue of judicial review over official presidential acts, and by depoliticising appointments to key state offices and services through the restoration of the Constitutional Council and revitalising the independent oversight commissions for the public service, police, the judiciary, elections, human rights, and bribery and corruption. The constitutional position of the Prime Minister within the executive has been strengthened by removing the power of dismissal from the President, and subjecting the Prime Minister only to the confidence of Parliament. Other ministers may also only be dismissed by the President on the advice of the Prime Minister. Similarly, the President cannot dissolve Parliament during all but the last six months of its five-year term, except through a resolution passed by a two-thirds majority by Parliament itself. Official acts of the President are also now susceptible to the fundamental rights jurisdiction of the Supreme Court. The Constitutional Council, chaired by the Speaker and consisting of MPs and civil society representatives, constrains the President to act on its recommendations, or on its approval, in making key appointments such as judges of the superior courts, the Inspector General of Police, and the Attorney General, and the independent commissions.