CORE Metadata, citation and similar papers at core.ac.uk Provided by The South Asianist Journal Ethnocracy or republic? Paradigms and choices for constitutional reform and renewal in Sri Lanka Asanga Welikala Vol. 4, No. 1, pp. 1–24 | ISSN 2050-487X | www.southasianist.ed.ac.uk www.southasianist.ed.ac.uk | ISSN 2050-487X | pg. 1 Vol. 4, No. 1, pp. 1–24 Ethnocracy or republic? Paradigms and choices for constitutional reform and renewal in Sri Lanka Asanga Welikala University of Edinburgh, [email protected] This articles considers the recent constitutional reform process in Sri Lanka and offers two analytical models for explaining the options for choice and change. www.southasianist.ed.ac.uk | ISSN 2050-487X | pg. 2 Introduction in a 100-day reform programme. The n 28th April 2015, Sri Lanka centrepiece of this programme was the abolition or at least the reform of the recorded an historic constitutional executive presidency. In challenging Omilestone when its Parliament President Rajapaksa, there was the widest enacted the Nineteenth Amendment to the consensus among the parties involved in 1978 Constitution. The process of its the Sirisena candidacy that something drafting and enactment had been must be done to reduce the deleterious disorganised and opaque, its passage in consequences of the uncontrolled Parliament fought clause by clause by the presidency. Executive presidentialism has opposition, and the final content of the been opposed on grounds of constitutional democracy ever since it was first proposed, amendment was a much-diluted version of but especially after the expansion of its the original proposals of the government. powers through the Eighteenth But this was nevertheless the most Amendment, these problems had become substantial reduction of the powers of the acute.3 However, there was less consensus executive president since the introduction on whether the remedy was to abolish of that office in 1977. Even though since presidentialism altogether and return to a the mid-1990s various presidential parliamentary system, or whether the candidates had obtained repeated mandates benefits of presidentialism could be retained whilst removing its more for its abolition,1 once in office they had egregious features. not merely broken the promise, but in the While such debates about systems of case of President Mahinda Rajapaksa in government are common to any 2010, actually expanded its powers.2 constitutional reform exercise, in practice Since the dramatic ouster of the choices between presidential and Rajapaksa regime in the presidential parliamentary models found in political election of January 2015, the new Sri science and constitutional law textbooks Lanka government headed by President are never clear-cut. Heuristic models help Maithripala Sirisena and Prime Minister in clarifying the available options and their Ranil Wickremesinghe has been engaged strengths and weaknesses no doubt, but ultimately constitutional choices about the 1 The winning candidates in the 1994, 1999, and system of government are decided by 2005 presidential elections unequivocally promised contextual factors. History and culture – or abolition of the executive presidency. While in 2010 the promise was more amorphous, it was still more accurately in a plural polity, histories suggested that substantial reforms to cut back its powers would be made. 2 The Eighteenth Amendment to the Constitution 3 See J. Wickramaratne, ‘The Executive (2010) removed the two-term limit on presidential Presidency: A Left Perspective’ and R. Edrisinha, office and procedural restraints on presidential ‘Constitutionalism and Sri Lanka’s Gaullist powers. See R. Edrisinha & A. Jayakody (Eds.) Presidential System’ in A. Welikala (Ed.) (2015) (2011) The Eighteenth Amendment to the Reforming Sri Lankan Presidentialism: Constitution: Substance and Process (Colombo: Provenance, Problems and Prospects (Colombo: CPA). CPA): Chs.27, 28. www.southasianist.ed.ac.uk | ISSN 2050-487X | pg. 3 and cultures – influence the way more creatively in a new environment.”6 The fundamental ideas like nation, state, and interrelationship between the traditional sovereignty are conceived, and these in and the modern therefore is central to our turn determine how institutions of analytical understanding of contemporary government are designed. In the mid- political institutions and political 1960s, J.R. Jayewardene’s advocacy of mobilisation. Flowing from this, secondly, presidentialism was based on rationales of is the methodological caution against practical politics. He identified the relying solely on modern positivist transience of parliamentary majorities as a categories of institutional design. If we see major weakness of the post-colonial reforming presidentialism as solely about political system when seen against the the relative merits of positivist models of requirements of a stable and relatively presidentialism and parliamentarism, we enduring executive for rapid economic fail to appreciate the deeper ideas about development.4 When he eventually collective identity and the state that are at obtained the power to introduce play in the societal conversation about presidentialism in the late-1970s, the institutional reform.7 Thirdly, we need to legitimating arguments he used for this have a proper understanding of the process radical constitutional innovation took a of constitutional change that Sri Lanka is more pronounced historical and cultural currently undertaking, its character, and its turn in drawing upon parallels directly temporal span. What happened in the from the pre-colonial Sinhala-Buddhist January 2015 presidential election was not monarchy.5 a routine change of government followed This example of how presidentialism by changes in policy direction; it was a was designed and legitimated points us to fully-fledged regime change aimed at a number of salient matters to bear in mind bringing about a constitutional transition when discussing the reform of that from a burgeoning ethnocratic state to a institution almost forty years thence. republican constitutional democracy. The Firstly, it reminds us of the importance of reform moment began in mid-2014 and the “dialectical relationship between gained inexorable momentum throughout tradition and modernity” in most post- the latter half of the year with a growing colonial contexts such as Sri Lanka, and coalescence of the broadest array of the “powers of tradition to evolve political parties and civil society groups ever mobilised against a sitting president. If the present government is re-elected in 4 See his seminal 1966 speech to the Ceylon the forthcoming parliamentary election, Association for the Advancement of Science cited the reform moment will not end with the in K.M. de Silva & H. Wriggins (1994) J.R. Jayewardene of Sri Lanka: A Political Biography, Vol.II (London: Leo Cooper): pp.377-9. 6 S. Amunugama, ‘Ideology and Class Interest in 5 S. Kemper, ‘J.R. Jayewardene: Righteousness One of Piyadasa Sirisena’s Novels: The New Image and Realpolitik’ in J. Spencer (Ed.) (1990) Sri of the ‘Sinhala Buddhist’ Nationalist’ in M. Lanka: History and Roots of Conflict (London: Roberts (Ed.) (1997) Sri Lanka: Collective Routledge): Ch.9; R. de Silva Wijeyeratne, Identities Revisited, Vol.I: Ch.11 at p.342. ‘Cosmology, Presidentialism and J.R. 7 A. Welikala, ‘Nation, State, Sovereignty and Jayewardene’s Constitutional Imaginary’ in Kingship: The Pre-Modern Antecedents of the Welikala (2015): Ch.14. Presidential State’ in Welikala (2015): Ch.13. www.thesouthasianist.ed.ac.uk | ISSN 2050-487X | pg. 4 current series of reforms but will go on determine whether there is in fact a new until a new constitution is negotiated, constitution-making attempt in the next drafted, and adopted at some point in the Parliament, and if so, the institutional next Parliament. choices that are made within that exercise. These analytical, methodological, and contextual considerations will inform the The constitutional moment between and discussion to follow. While I will discuss beyond elections recent political events for the purpose of establishing the context especially in By the middle of 2014, when the reform relation to the nature of the recent reform movement that led to the regime change of process, the main aim of this essay is not January 2015 started gathering pace, the empirical but theoretical. Underlying the Rajapaksa government seemed at its peak debates and disagreements about political strength. On the back of the institutional form – about presidentialism euphoria over the victory in the war and parliamentarism or a combination of against the Liberation Tigers of Tamil these – is a much deeper cleavage of Eelam (LTTE) in May 2009, Rajapaksa political opinion about the very nature of had overwhelmingly won the January the Sri Lankan state. Those who voted for 2010 presidential election. He built upon Rajapaksa and others who voted for that with a comprehensive win in the 8 Sirisena reflected fundamentally different parliamentary elections of April 2010. In worldviews. The former voted to retain a mobilising the public and especially his strong presidential state not because of core constituency in the South in the war some inherent affinity with that form of effort, the regime had drawn upon Sinhala- government, but because it mapped on to a Buddhist nationalism’s martial tropes particular historical and cultural copiously and without any heed to 9 conception of the state that is heavily minority sensitivities. In September