The Current Constitution
The second republican Constitution of 1978 entrenched authoritarianism even further by putting in place a hyper-presidential system that gave the President sweeping powers. The new Constitution also facilitated a reconstitution of the courts and enabled the President at that time to dismiss judges through the process of constitution-making.
The constitution-making process was dominated by the United National Party (UNP) and had limited public engagement. There was no sustained attempt to forge a multi-party and multi-ethnic consensus. In this section we examine the process of constitution-making that led to the 1978 Constitution, consider some of its key drivers, and discuss its key elements.A sweeping win at the parliamentary election of 1977 provided the impetus for the making of a new constitution. Even though the UNP won a little over 50.9 per cent of the popular vote, it won 141 out of 168 seats and therefore had a five-sixths parliamentary majority, under the then existing first-past-the-post electoral system. It was also a time of economic change and Sri Lanka became the first country in South Asia to liberalise its economy. Previous economic policies which focused on import substitution and promotion of domestic manufacturing, were highly centralised, had been discredited because of the undemocratic nature of the previous regime. The country embraced foreign investment and foreign trade and embarked on a process of transforming its economy.
To JR Jayewardene, the main proponent of presidentialism, a new constitution with a strong executive would be transformative and would enable the country to enjoy the economic prosperity that its Asian neighbours such as South Korea and Singapore were enjoying. He had previously observed in 1966:
... the per capita wealth of our people has not kept pace with similar progress among people of the developed nations of the world..
While continuing the preservation of democratic freedoms as one of our achievements since independence, we have not achieved the economic freedom our people are entitled to. This has been one of our major failures. If then the system of democratic government has failed in some aspects, we should not hesitate to think of changes and amendments in that system where necessary. [In the presidential systems of France and the US]. the Executive is chosen directly by the people and is not dependent on the Legislature during the period of its existence. Such an executive is a strong executive,. not subject to the whims and fancies of an elected legislature; not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced with today.26(Consequential Provisions) Bill' in Decisions of the Constitutional Court of Sri Lanka, vol 3, 7. The Constitutional Court was created by the 1972 Constitution to review the constitutionality of bills and does not exist under the current Constitution. The Supreme Court took on this role when the new Constitution was enacted in 1978.
26 JR Jayewardene, Keynote Address to the Ceylon Association for the Advancement of Science, Colombo, 14 December 1966. Extract reproduced in Asanga Welikala (ed), Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Centre for Policy Alternatives, 2015) 3-4.
In its election manifesto for the 1997 election, the UNP pledged to introduce a new constitution with executive power vested in an elected President. Constitutional reform was thus a key issue in the election campaign with the Sri Lanka Freedom Party opposed to having the 1972 Constitution abolished.[1494] Prior to the 1978 Constitution there had been the Vaddukodai Resolution of 1976 which set the stage for a struggle for a separate state of Tamil Eelam.
In that year Tamil parties adopted a resolution that called for the establishment of a separate Tamil state in the North-East of the country.[1495] When presidentialism was introduced in 1978, there was a perception that since the President would be elected by a ‘national’ electorate consisting of the majority Sinhalese, and the ethnic and religious minorities, he or she would have to cultivate legitimacy with all ethnic and religious groups.[1496] This however, has proved to be misplaced as both Mahinda Rajapakse in 2010 and his brother, Gotabaya in 2019, were able to obtain a large majority of the popular vote by appealing principally to a Sinhala-Buddhist vote bank.[1497]Unlike in 1972, in 1978, the procedures contained in the 1972 Constitution were followed to replace the Constitution with a new one. After his party’s victory at the election in 1997, Jayewardene moved swiftly and introduced a constitutional amendment in September of that year. Through this amendment to the 1972 Constitution Jayewardene became first Executive President and took office on 4 Feb 1978 (Independence Day).
In October 1977, the National State Assembly adopted a resolution to establish a Select Committee ‘to consider the revision of the of the constitution of the Republic of Sri Lanka and other written law as the Committee may consider necessary’. '1 he Select Committee consisted of seven members of the UNP, two from the SLFP, including the former Prime Minister Sirima Bandaranaike, and one from the Ceylon Workers’ Congress (a political party and trade union representing the Up-country Tamils), a political ally of the UNP. 'lhe Tamil United Liberation Front, the major Tamil party, refused to participate. Jayewardene ceased to be a member of the Select Committee on the assumption of the presidency in February 1978 but continued to attend its meetings. 'lhe use of the Select Committee process enabled the UNP to dominate the constitution-making process and ensure that Jayewardene’s and his party’s views shaped the making of the new constitution.
The Committee received 281 public responses, and some were given the chance to make oral representations.The Committee was supported by a team of three lawyers, one of whom, Mark Fernando, was subsequently appointed to the Supreme Court, and was a key figure in developing the Court's public law jurisprudence in the 1990s. In its election manifesto the UNP had promised to convene an all-party conference to draft a new constitution but dropped this on assuming power. The main left parties, which had played a key role in the drafting of the previous constitution in 1972, had lost their seats and were not represented in Parliament, and were therefore unable to participate. However, they did offer forceful critiques of the new Constitution.[1498] The current Constitution came into effect on 7 September 1978. The two main opposition parties walked out of Parliament and did not participate when the Constitution was adopted. The 1978 constitutional change was driven essentially by one political party, and some may argue, by one man, the first Executive President. As in 1972, the UNP was able to use its large parliamentary majority to steamroll in a new Constitution even though there was a lack of multipartisan support for it.[1499]
The 1978 Constitution made the President Head of State, Head of the Executive and Government, and Commander in Chief of the Armed Forces.[1500] The President is elected directly by the people for a fixed term of six years and is not a member of the legislature. The Presidential term was reduced to five years, by the 19th Amendment (19A). As a result of a subsequent constitutional amendment, the President may call for an election after four years, at his or her discretion.
In the original Constitution the President was given the power to dismiss the Prime Minister and dissolve Parliament after a year in office. The President could also assume any ministerial office and determined the composition of the Cabinet.
Appointments to the posts of Chief Justice, judges of the superior courts, the Attorney General and the Inspector General of Police were at the President's discretion.The Constitution undermined judicial independence and security of tenure in 1978 by abolishing the previous High Court and Supreme Court and established a new Court of Appeal and Supreme Court. All judges ceased to hold office the moment the Constitution came into effect.[1501] Eight of the former judges of the Supreme Court were not appointed to either of the new courts and one declined an appointment in the Court of Appeal. By contrast, members of the legislature and the public service continued to hold office. It was clearly an endeavour to remove judges the new regime did not favour.
The President may also declare an emergency and govern by way of emergency regulations with little judicial oversight.[1502] A small fetter on the President's powers was the Constitutional Council, first introduced by the 17th Amendment to the Constitution in 2001, repealed in 2010 through the 18th Amendment, reintroduced in 2015 through the 19th Amendment, and repealed yet again in 2020 by the 20th Amendment.
The vast powers reposed in the office of the President has enabled the office holder to influence many of the independent institutions including the judiciary; the Attorney General; and the Human Rights Commission. For example, soon after the April 2010 parliamentary election the Attorney General was brought directly under the purview of the President.
Presidentialism has dominated constitutional politics and constitutional reform since its introduction. In its original formulation, it permitted the exercise of a large amount of executive power, with very few checks and balances. Its impact has been influenced by those who have held office. While some presidents have centralised power in the presidency and the presidential secretariat, others have tended to be less autocratic.
Many of those who contested the presidency promised to abolish it. However, on assuming office, they have found its powers too tempting. Some constitutional amendments have strengthened the presidency, especially the 18th Amendment passed in 2010 that enabled the President to contest for more than two terms and abolished the Constitutional Council. A pliant legislature has also had an impact on presidentialism. Where the President has had the support of a majority in the legislature, this has increased the institution’s authoritarian tendencies. In the rare cases in which the legislature has been controlled by the opposition, this has acted as a check on unbridled presidentialism.Over the years, the presidency has acquired a social and cultural significance that has gone beyond the constitutional text. It has enabled its office holders to project themselves as a modern-day monarch, in the mould of ancient Sinhala- Buddhist kings, and as protectors of the country’s Sinhala-Buddhist heritage. For example, when the state defeated the Liberation Tigers of Tamil Eelam (LTTE) in May 2009, President Rajapakse, who was in power at that time, drew parallels between Dutugemunu, an ancient Sinhala king who defeated Tamil King Elara in battle. It is a much-chronicled encounter that is documented in the historical Sinhala text, the Mahavamsa, and glorified in history books, artwork, theatrical productions, novels, and films. Ancient rituals and imagery have also been relied on by holders of the office to buttress the political image of those in presidential office and develop additional layers of popular legitimacy.[1503]
Although social and economic stability was the rationale for presidentialism in Sri Lanka, the country has experienced some of its worst violence in a 100 years since then. Violence against the Muslims occurred in 1977 and 1982, and against the Tamils in 1978. In 1983, which is seen as the starting point of the ethnic war, 13 army soldiers were killed by the LTTE in Jaffna and soon after ethnic riots erupted in Colombo. Many Tamils were killed, Tamil businesses were attacked and looted, and many Tamils lost their property. Others sought refuge elsewhere. There was evidence to suggest that the state was involved in fueling the riots or at the very least ‘standing by' while the rioting and looting took place.[1504] Between 1983 and 2009, the state, the LTTE, and for a while, other Tamil groups, fought a brutal civil war. Both sides attacked not only military targets but also civilians and their property, and other places including temples and places of historical and intellectual value.[1505] Human rights violations by both the state and non-state actors are well-documented.[1506] Since the conclusion of the war in 2009, violence against the Muslim minority and Evangelical Christians has increased. Muslims have had their businesses, mosques and homes attacked and ransacked, and encountered increasing levels of hate speech in online and offline spaces.[1507]
Jayewardene saw his 1978 Constitution as a transformative one. His belief was that it would transform the lives of people and usher in stability and economic prosperity.[1508] While there has been some economic prosperity over the past 44 years, the link between this prosperity and the 1978 Constitution is hard to establish. On the contrary, the country has been through some of its worst violence in over 100 years and has experienced huge social and political upheaval during the subsistence of the 1978 Constitution.
IV.