Political commentators have attempted to depict Sri Lanka’s debates over the 20th Amendment as a conflict between “democracy” and “security”. Proponents claim the need for “strong government” to ensure national security and a prosperous economy during an exceptional period; whereas, opponents of the measure claim that this is an unprecedented break from Sri Lanka’s proud tradition of inclusive democracy.
What these discussions often fail to highlight is the racial dimensions behind these proposals as well as the deeper historic context in which they arise. Sri Lanka’s imagined history of inclusive democracy is, in reality, an ethnocracy which privileges the concerns of the Sinhala Buddhist population whilst simultaneously silencing and vilifying Tamil and Muslim dissent.
The politicisation of national security
In the August 2020 parliamentary elections, the Rajapaksas were successfully able to secure the two-thirds majority they would need to pass the 20th Amendment. During their electoral campaign, they persistently attacked the Sirisena administration for its failure to deal with Sri Lanka’s ruinous economy and for weakening national security by allegedly caving to Tamil demands for constitutional reform and accountability.
This accusation of a weak and inept government gained particular resonance following the 2018 Easter Sunday bombings, in which over 260 people were killed, in an attack claimed by Islamic extremists.
Several Sri Lankan Parliamentarians have claimed that members of the National Thawheed Jammath (NTJ), who were deemed responsible for the attacks were being paid by Sri Lankan intelligence and had established links with Gotabaya Rajapaksa. According to a parliamentary select committee, Sri Lanka’s security forces received intelligence that an attack was due to take place on Easter Sunday but may have allowed it to proceed in order to “create chaos and instil fear” ahead of presidential elections.
Despite these concerns, Rajapaksa has been successful in placing blame on the previous regime, for allegedly dismantling the national security apparatus and caving to Tamil demands.
The Office of Missing Persons (OMP), a measure that was largely rejected by families of disappeared for its impotence, was alleged by Rajapaksa to be a deliberate attempt at prosecuting Sri Lanka’s “war heroes”.
It is an “inquisitorial body that can issue summons, examine witnesses, and collect evidence”. The OMP “can search without a warrant any armed forces installation, police station, or prison and take into their possession any document or thing they deem necessary”, claimed Rajapaksa.
In September UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, slammed Sri Lanka for its appalling record on human rights. In his report, he highlighted how matters of transitional justice were being distorted along ethnic lines for political gain.
It is “represented as a boon for only one minority group and as a threat for the majority community”, Greiff states.
The Rajapaksa administration has successfully framed accountability measures as a victory for “separatist Tamils” whilst also weakening the national security infrastructure for the Sinhala majority.
No one is above the law, except for the President
The 20th Amendment continues with this trajectory as not only does it do away with calls for “reconciliation and integration”, detailed under the 19th Amendment, but it also grants Rajapaksa full immunity from both civil and criminal proceedings.
Article 35(1) states:
“(1) While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.”
Under the 19th Amendment, presidential immunity was restricted as citizens could file Fundamental Rights Applications (“FRAs”) against the president when exercising executive power. This meant in theory that the public could call any action of the president to account and if he was in violation of the law, the Supreme Court could grant relief to the aggrieved person.
In defending this proposed article, Sri Lanka Podujana Peramuna (SLPP) MP and Minister G L Peiris simply claimed that removing these checks on the president gave him more time to serve the public. He stated:
“The President was made to appear before various commissions and courts prior to his election. If he is to appear before such courts and commissions after being elected as the President, he will not have sufficient time to implement pledges made in his election manifesto ‘Vistas for Prosperity’.”
This proposed immunity comes during a period in which an increasing number of military officials, credibly accused of war crimes, are taking senior position within government and in civilian roles. It further follows the pardoning of Sunil Ratnayake, one of the few Sri Lankan soldiers convicted of war crimes.
What will the 20th Amendment mean?
Further issues with the 20th Amendment regard the independence of public commissions and the ability of the president to reshape parliament.
Under the 20th Amendment the Constitutional Council, which is responsible for key appointments such as the Chief Justice and judges on the Supreme Court as well as the Public Service Commission; will be replaced by an advisory body composed of MPs. The president will only be required to seek ‘observations’ for the appointment of key personnel. The Centre for Policy Alternatives (CPA) warns that this will provide him ‘unchecked power over the Commission which would adversely affect the independence of the Commission and have the effect of undermining the independence of the public service’.
The 20th Amendment also enables the president to dismiss the Prime Minister, as well as other ministers, unilaterally whilst also appointing ministers. CPA warns that this would ‘result in a Cabinet which is likely to be subservient to the President, where they hold their positions at the pleasure of the President’. The power of the president is further strengthened as the proposal enables them to assign to themselves “any subject or function”. The president's ability to appoint an unlimited number of ministers and deputy ministers, which was restricted under the 19th Amendment, will enable them to further stack parliament with loyalists.
The 20th Amendment further reduces the ability of Parliament to impose scrutiny on legislation as it reintroduces ‘Urgent Bills’. This enables the president to refer to the Supreme Court directly any Bill certified by the Cabinet of Ministers as “urgent in the national interest”. The Supreme Court is then responsible for deciding on the Constitutionality of the Bill within 24 hours or 72 hours depending on the instructions of the president.
‘Authoritarian Constitutionalism is here to stay’
Whilst the 20th Amendment has seen a healthy amount of opposition, it is important to note that Sri Lanka has a history of shifting from “democratic” and authoritarian modes of governance.
Proponents of the 20th Amendment itself have maintained that this would be a return to 1978 when then-president J R Jayawardene introduced the executive presidency. This enabled him to extend his rule through a second, unelected term until 1989.
Commenting on the issue of the 20th Amendment, legal academic K. Guruparan notes that the measures which set to limit the Presidency (the 17th and 19th Amendments), were fundamentally “propelled by constitutional-political moments”.
These moments proved to be facile as Guruparan notes that those who pushed for the 17th and 19th Amendment (Chandrika Bandaranaike Kumaratunga and Ranil Wickremesinghe), “when they were proximate to capturing the institution of Presidency refused to abolish” the Executive Presidency.
Instead, the constitution is treated as a political weapon to further embolden one’s political control. It is in this light that Mahinda Rajapaksa attacked the 19th Amendment, not on political grounds, but as a personal slight to prevent him from seeking a third term.
It is in light of this persistent willingness to provide short solutions to Sri Lanka’s intractable democratic deficit that Guruparan notes that “Authoritarianism did not start with the Rajapaksas in Sri Lanka and will not end with the Rajapaksas either”.
Read the full 20th Amendment here