'lhe Failure of Transformative Constitution-Making
Countries make constitutions for a variety of reasons.[1545] Constitutions are made to assert statehood, to transform unequal social relations, to restrain state action, and to preserve the peace.
The argument of this chapter is that the processes of transformative constitution-making initiated in 1978 failed to deliver on what they sought to do. Instead, the Constitution created a framework for political instability, bad governance and has been a key factor leading up to one of the worst economic crises the country has seen.In 1948 a constitution was drafted to assert the country's nationhood and independence. A constitution was also needed to ensure that the country functioned within the framework of liberal parliamentary democracy. Unlike in Africa, where Nkrumah, Kenyatta and Nyerere were critical of constitutionalism,[1546] in Sri Lanka, at independence, there was a consensus that British style parliamentary democracy was the way forward. While the Constitution did not contain a bill of rights, a flawed constitutional design sought to maintain the ethnic peace in an ethnically divided society by the inclusion of Section 29. Constitution-making at independence was an elite process of bargaining. Yet it did ensure that the country stayed within a liberal democratic framework for 25 years. Its design however, failed abysmally to hold the ethnic peace, with tensions among the ethnic groups growing, facilitating the disenfranchisement of the Up-country Tamils in the 1950s, and overt violence against minorities beginning to emerge.
In 1972, a populist left-wing coalition government with two Marxists parties as part of the alliance, won under 50 per cent of the popular vote but yet secured a large enough parliamentary majority to adopt a new constitution without multipartisan support. To those leaders, constitution-making was a means of severing all symbolic ties from the British and establishing an autochthonous constitution.
The Constitution was also a means of centralising power in a parliamentary executive and removing many of the checks and balances that previously prevailed, such as the power of the courts to review legislation, the second chamber, and the independence of the public service. It provided an opportunity to give a preeminent symbolic place to Buddhism and the Sinhala language, and to bring in a concept of the unitary state, which has proved an obstacle to reform since then. Even though autochthony was a stated goal, the new Constitution was moulded very much in the British tradition, without many of the checks that the British parliamentary system provided. The term of Parliament was unconstitutionally extended by two years and the democratic excesses of the regime between 1970 and 1977 provided the foundation for the transition of 1977 and the entrenchment of presidentialism.The 1978 Constitution was proclaimed as a transformative one. It was meant to spur economic growth and position the country as another Asian Tiger by concentrating power in a strong Executive Presidency with few checks and balances. Inspiration came from the French Gaullist model and the US system, without the checks that those systems provided. Authoritarianism was rationalised by Jayewardene in order to pursue economic development.
Some economic transformation has occurred since then. According to the World Bank, the country transited from low-income status to middle income status, and even briefly was classified as an upper-middle income country. The economy was previously dependent on three main commodities: tea, rubber, and coconut. The economy has now diversified with the manufacturing and service components growing strongly. Where labour was previously concentrated in agriculture, this has now diversified. The country also transited from an inwardlooking economy focused on domestic production and import substitution to a more robust engagement with international trade and international financial institutions.
However, the causality between these modest economic gains and the constitutional design of 1978, is hard to establish.
Would the country have achieved these gains in absence of the current constitutional framework? The evidence to support this proposition is lacking. Yet the economic transformation that occurred has lagged far behind the growth of Asian Tigers with corruption, nepotism, several large unproductive state-owned enterprises, and poor leadership impeding the economic transformation that the architect of presidentialism, Jayewardene, envisioned in the 1970s. At the time of writing, the country is mired in one of its worst economic crises. Ballooning foreign debt, an unproductive state sector, a currency that has rapidly devalued, and the consequences of the COVID-19 pandemic, has meant that the country is struggling to find resources to secure fuel, gas, medicines, and essential supplies to keep its economy afloat. Nation-wide protests resulted in the President Gotabaya Rajapaksa being forced to resign, and Ranil Wickremesinghe, being elected by Parliament as the new President to serve the remainder of Rajapaksa’s term.The 1978 Constitution was radically transformed by the 19A in 2015. The 19A resulted in a better balance among the different organs of government and the independent institutions and was accompanied by a constitutional culture that supported dissent and institutional robustness. Unfortunately, the gains of the 19A were reversed by the 20A in 2020 and the country has lapsed once more into hyper-presidentialism.
While ethnic peace was important to those who drafted the Constitution in the 1940s, ethnic peace and inter-ethnic relations were ignored by the 1972 and 1978 constitution-making processes. These processes hardened positions among the minorities, especially the Tamil minority. One of the consequences of not responding to the demands for power-sharing that came from the Tamil minority, was that the country had to endure some of its most serious political violence in over 100 years with large-scale loss of life, destruction of infrastructure and implications for the economy.
Although social and economic stability was the rationale for presidentialism, the country has been challenged by political violence and instability since then. The paradox of 1978 was the Bill of Rights it introduced and the opportunity for pre-enactment review of legislation. This has proved to be transformative and has enabled the SC to restrain the executive on limited occasions.Constitutional reform remains a priority in Sri Lanka. Constitutional reform is very much a response to the past as it is to the future. It is in power-sharing that
the roots of the conflict lie and so any attempt at preventing future violence would need to reform the nature and practice of the state. Economic prosperity should no doubt remain a priority for state policy. However, the experiences of Sri Lanka suggest that economic prosperity has little to do with constitutional design and more to do with economic policy, elimination of corruption, and astute governance. Constitutional reform and design need to facilitate political stability by building an inter-ethnic peace among deeply divided social groups in the country. This it can do by enabling power-sharing between Tamil dominated regions and the centre, by establishing a second chamber to enable regions to share power at the centre, by introducing judicial review of legislation, by establishing the principle of constitutional supremacy, and laying the foundation for a constitutional culture that will enable courts, the independent institutions, civil society, and the media to flourish. Political stability through an inter-ethnic peace and balanced constitutional government will provide an enabling framework for economic transformation.
408