Constitutional Struggle in Sri Lanka
| Author | Mario Gomez |
| DOI | 10.1177/0067205X221100258 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | SPECIAL ISSUE (PART 1): CONSTITUTIONAL STRUGGLES IN ASIA |
Special Issue (Part 1): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(2) 174–191
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DOI: 10.1177/0067205X221100258
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Constitutional Struggle in Sri Lanka
Mario Gomez*
Abstract
Sri Lanka has alternated between authoritarian politics and constitutional democracy over the pas t
70 years. For 25 years after independence, the country functioned as a constitutional democra cy
with regular elections and power alternating between the two main political parties. Since 1972,
political elites have used constitution-making as a method of consolidating their hold on political
power. In 2015, the 19th Amendment to the Constitution trimmed the powers of the President and
provided for a balanced form of power-sharing between executive and legislature. It enhanced the
independence of the courts and the fourth-branch institutions. However, these gains were reversed
by the 20th Amendment, passed in 2020. Against the backdrop of an intense competi tion for
political power and the manipulation of constitutions to retain power, this contribution discusses
three recurring sites of constitutional struggle and debate in Sri Lanka: struggles over presi-
dentialism, power-sharing and the place of Buddhism in the constitution. This paper contends that a
return to constitutional democracy will require, at a minimum, a revisitation of the first two issues,
even if the third —the place of Buddhism —remains untouched. The paper concludes by arguing
that while all three constitutional struggles have a different historical trajectory and different
dynamics, they are all part of a larger struggle —the struggle to transform Sri Lanka from a
Buddhist-majoritarian state into a plural, multi-ethnic and multi-religious society in law and in
practice.
Received 21 July 2021
Introduction
Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past
forty years. For 25 years after independence, the country functioned as a constitutional democracy
with regular elections and power alternating between the two main political parties. The courts
remained independent even if their record in protecting the rights of ethnic minorities was poor. The
Constitution of the Republic of Sri Lanka 1972 (Sri Lanka) (‘1972 Constitution’), enacted without
multi-partisan support, changed this. Since then, the country has moved between authoritarian
politics and democracy as political elites have used constitution-making as a method of consol-
idating their hold on political power. In 1972, 1978, 2010 and 2020, political alliances that won
*Executive Director, International Centre for Ethnic Studies, Sri Lanka.
convincingly at the elections manipulated constitution-making to advance their political interests
and retain political power.
In 2015, a political transition resulted in a more democratic constitution and a better balance
between legislature and executive. For a few years, the country experienced a robust political culture
and a resurgence of independent institutions, including the courts.
1
The Nineteenth Amendment to
the Constitution (Sri Lanka) (‘19A’) introduced in 2015 trimmed the powers of the presidency
substantially and provided for a balanced form of power-sharing between executive and legislature.
It enhanced the independence of the courts and the fourth-branch institutions.
These gains have however been reversed. Within months of being elected to power, the
government passed the Twentieth Amendment to the Constitution (‘20A’) in October 2020. The
amendment returned Sri Lanka once more to a system of hyper-presidentialism with power
concentrated in an elected Executive President. The 20A brought to the surface, yet again, one of the
dominant constitutional struggles and debates in the country: what is the appropriate balance to be
struck between executive power and legislative authority?
The 20A had implications for another constitutional struggle: the struggle for power-sharing on
the part of the Tamil and Muslim minorities. Ethnic politics has dominated constitutional gov-
ernment in the country since its independence in 1948, and the 20A has foreclosed, at least for the
moment, the possibility of a power-sharing arrangement in those areas with large populations of
Tamil and Muslim minorities. Constitutional politics has been defined by the Tamil demand for
greater control over their affairs. The 26-year civil war was fought along ethnic lines with the
demand for self-government and autonomy being the major driver of that armed struggle.
2
In the
1930s, Tamil actors sought greater representation in the central legislature, while after indepen-
dence, they have sought autonomy-based arrangements.
The return of the Rajapakses, first in the presidential election of November 2019, and then in the
Parliamentary election of August 2020, was driven largely by a Sinhala–Buddhist vote bank. In this
context, revision of the clause giving ‘foremost’place to Buddhism and the Buddha Sasana is
unlikely. The place of Buddhism has been a third site of struggle amongst different groups of actors
since independence. Prior to the drafting of the independence constitution, Sinhala–Buddhist groups
led by the All Ceylon Buddhist Congress pushed for a prominent place for Buddhism in the
constitution as a means of redressing the historical injustices undergone by Buddhism under
Portuguese, Dutch and British colonialism. Tamil and Muslim minorities on the other hand have
argued for a secular state. In the 1972 Constitution, Buddhism was accorded a ‘foremost ’place for
1. MarioGomez, ‘Constitutional Change and Institutional Resilience in Sri Lanka’in Henning Glaser (ed), Shifting to a New
Constitutionalism: Changing Political Orders in Asia (Nomos, forthcoming).
2. Forwriting on the ethnic war that lasted between 1983 and 2009, see S J Tambiah, Sri Lanka: Ethnic Fratricide and the
Dismantling of Democracy (Chicago University Press, 1986); John Richardson, Paradise Poisoned: Learning about
Conflict, Terrorismand Development from Sri Lanka’sCivil Wars (International Centre for Ethnic Studies, 2005); Neil De
Votta,Blowback: Linguistic Nationalism, Institutional Decay, and Ethnic Conflict in Sri Lanka (Stanford University Press,
2004); Nira Wickramasinghe,Sri Lanka in the Modern Age: A History of Contested Identities (University of Hawaii Press,
2006); Rajan Hoole et al, The Broken Palmyra: The Tamil Crisis in Sri Lanka: An Inside Account (Sri Lanka Studies
Institute, 1990); Mario Gomez, ‘Keeping Rights Alive: Reform and Reconciliation in Post-War Sri Lanka’[2011] 17
Asian Yearbookof International Law 117; Citizens’Commission on the Expulsion of Muslims from the Northern Province
by the LTTE in October 1990, The Quest for Redemption: The Story of the Northern Muslims (Final Report, 2012) and
Paul Sieghart, Sri Lanka: A Mounting Tragedy of Errors (Report, March 1984).
Gomez 175
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