ISSN: 2659-2150 LST REVIEW Vol 29 | Issue 347 | Jan. 2019 www.lstlanka.org Will Sri Lanka ever have a People’s Constitution? LST REVIEW Vol 29 | Issue 347 | Jan. 2019 Will Sri Lanka ever have a People’s Constitution? Law & Society Trust First Published 2019 ISSN (print): 1391-5770 ISSN (online): 2659-2150 Around the Nation in Fifty Days: How the People Engaged with the Constitutional Crisis Vidura Prabath Munasinghe The author captures citizens' reactions and opinions during the constitutional crisis that engulfed Sri Lanka in the 50 days following 26 October 2018 via in-depth interviews carried across a cross-section of the country with the objective of examining how the citizenry responds and reacts to a complex political scenario of this nature. On the Process of Creating a People’s Constitution Lal Wijenayake The writer provides an insider look of the ongoing constitutional reforms process, emphasising on its representation from the populace as well as all elected political parties and contrasts it against previous non- inclusive constitution-making initiatives. Sustaining Constitutional Government - the Threats and Tests of Sri Lanka’s Living Constitution Suri Ratnapala Suri Ratnapala sets out the principles of constitutional governance including an overall culture of independence and impartiality and traditions of liberal democracy, the threats and challenges to such, and the importance of social forces and institutions rooted in popular attitudes in the upholding of constitutional governance. The Supreme Court’s Tryst with Destiny Radhika Coomaraswamy The author provides an in-depth jurisprudential analysis of the recent Supreme Court judgment on the powers of the executive as provided by the 19th Amendment to the Constitution emerging from the constitutional crisis of October 2018. Sri Lankan ‘Culture’ on Constitutionalism: How Political Culture has shaped our Constitution Sakuntala Kadirgamar In this article the writer analyses the nexus between culture and constitutionalism in Sri Lanka, examining how Sri Lanka's constitutional culture is influenced and shaped, particularly by its political culture. Printed in Colombo Sri Lanka Contents Will Sri Lanka EDITORIAL ever have Will Sri Lanka ever have a People’s 1 a People’s Constitution? Constitution? ARTICLES On the evening of Friday, 26 October 2018, the nation of Sri Lanka was taken by surprise. The Around the Nation in Fifty Days: 5 Presidential Secretariat made three dramatic How the People Engaged with the announcements: the UPFA’s withdrawal from Constitutional Crisis the government, the swearing-in of Mahinda - Vidura Prabath Munasinghe Rajapaksa as Prime Minister before the President and Ranil Wickremesinghe being On the Process of Creating a People’s 19 informed in writing of his removal from the Constitution office of Prime Minister. - Lal Wijenayake As a woman in Wellawaya put it succinctly: Sustaining Constitutional Government 24 “The government had changed without anyone - the Threats and Tests of Sri Lanka’s knowing”. Living Constitution - Suri Ratnapala A population that had for the large part been sleepily looking forward to the weekend was The Supreme Court’s Tryst with Destiny 33 now abuzz. Social media was on fire. People - Radhika Coomaraswamy from all walks of life had strong views on the matter. Supporters of the move lit firecrackers. Sri Lankan ‘Culture’ on 46 Life-size plastic banners of Rajapaksa sprouted Constitutionalism: across the country. Those rejecting the removal How Political Culture has shaped our of the prime minister in this manner protested Constitution through online petitions and op-eds citing the - Sakuntala Kadirgamar Constitution and rule of law. Groups emerging to defend the Constitution formed unlikely coalitions. As Wickremesinghe refused to step down or leave his official residence, the President dissolved the Cabinet and prorogued Parliament. The story made it to page 7 of the New York Times. Foreign diplomats in Sri Lanka were faced with a dilemma – which prime minister should they call on? A visit to one was tantamount to recognition; failure to visit akin to rejection. LST REVIEW Vol 29 | Issue 347 | Jan. 2019 | 1 WILL SRI LANKA EVER HAVE A PEOPle’S CONSTITUTION? All eyes were on Parliament that had to Interestingly, while 18% were puzzled by the show its support to one or the other of the events to the extent that they were unable to contesting prime ministers. The political decide on its results, those who condoned drama spilled over to Parliament where some and condemned were of equal proportions. members crossed from one side to another A majority of respondents approved of and then re-crossed to their base. MPs were Wickremesinghe losing the office of prime said to be demanding payments so large to minister and this was in line with the results cross over that they were unaffordable and of the local government elections held earlier parliamentarians attacked each other in the that year. This result was not influenced by chamber of Parliament itself. The refusal of ethnic affiliations. The Central Bank bond Wickremesinghe to concede provided the scam, whilst out of the mainstream media space for civil society to take the matter to was still firmly embedded in the average Sri the Supreme Court. The Supreme Court Lankan’s mind. Also noteworthy is that despite judgment was historic and while it ended the Rajapaksa’s taking of office being met with crisis in the short-term the implications for initial approval by 44% of the respondents, he the future are not clear. Despite the electoral began to lose this endorsement rather quickly promises to abolish the executive presidency, as the consequent events played out. the politicians remain tempted by the powers of that office. Commitment to democracy and Lal Wijenayake gives an insider look at rule of law is thin on the ground – especially the constitutional reforms process thus far among the elected representatives of the and points out how the on-going process people. differs from previous constitution-making attempts. He was the chairman of the group This edition of the REVIEW takes a of 20 academics and professionals charged consummate look at the events that unfolded by the Cabinet to put together a report of from 26 October 2018. It also surveys the their recommendations based on public precedents that allowed for the crisis, our long representations – both written and verbal history of political meddling in the constitution – from all 25 districts. The representations and its impact on the constitutional culture, included organisations such as trade unions, the Supreme Court's paradigm shifting decision civil society and religious associations, and and the thought processes of the Sri Lankan citizens’ views as well. He is uniquely suited to populous at large as the events unfolded. provide insights into the process. We begin our review with Vidura Prabath Unlike the previous constitutions, drafted by Munasinghe, who takes us on an instructive a small elite, hidden from plain sight in spaces journey of revelations - some predictable of privilege and power, Wijenayake contends and others unexpected, from when he and that the present process included public his team traversed across the country in the participation and also the participation of all immediate aftermath of the 26 October crisis. political parties through their representation Over 140 women and men in 22 districts were in the steering committee and in the six interviewed in the space of a month to gauge subcommittees to assure an all-party process. the Sri Lankan people’s stream of consciousness He attributes the delay in presenting the as they reacted to the events of 26 October draft constitution to the democratic and and the consequent actions that immediately representative process itself, asserting that followed. consensus is of primary importance to create "a Sri Lankan nation with a Sri Lankan identity, 2 | Vol 29 | Issue 347 | Jan. 2019 LST REVIEW EDITORIAL where all citizens will be equal and proud to and opened up many areas of executive and call themselves Sri Lankans". legislative power to the scrutiny of rule of law. Meanwhile, Suri Ratnapala from Australia In line with the work of Ronald Dworkin, the provides an academic’s eye view of the Supreme Court did not focus on underlying challenges of sustaining constitutional policy or politics like the American Realists government and the lessons learnt in the and the Critical Legal Studies schools of recent crisis. He points out that threats jurisprudence nor did it seek to uncover the to constitutional government could come policy imperatives and attempt to give direction from above and below and that populism or reconcile them like some of the great realist and weak institutions may also undermine judges of the US Supreme Court. Instead, the democracy. If Sri Lanka’s constitutional crisis court reiterated giving a statute its plain and precipitated by the President on 26 October ordinary meaning with the condition that the has a positive outcome, it is the demonstration object of all interpretation is to discover the that a constitution will not be saved by its intention of Parliament, while applying the text without the social forces that sustain it. harmony principle. The court also spelled out Ratnapala cites the Sri Lankan example as a as principle the legal maxim that the specific demonstration of the living constitution that provisions must be given preference over the evolved and may set an example to other liberal general unless there are specific words to the democracies. He nevertheless points out that contrary. the very fact that we applaud the judges for upholding the Constitution itself points to our And finally, Sakuntala Kadirgamar, Executive history of judicial improbity until recently and Director of the Law and Society Trust, delves that the constitutional crisis made palpable the into the implications of culture for constitution absence and weakness of a "matrix of supporting building and constitutional government.