Sri Lanka’s current second Republican Constitution will complete half a century in another two years. So far, 21 amendments have been introduced to this Constitution.
The historical trajectory of Sri Lanka’s Constitution has mostly been utilised to fulfil the power requirements of political leaders and political parties in power, rather than aiming to stabilise the country’s administration or strengthen democratic institutions.
The history up to the 22nd Amendment – presented in Parliament last week by the National People’s Power (NPP) Government to increase the retirement age of superior court judges – clearly illustrates how constitutional change in Sri Lanka is intertwined with the interests of its rulers.
The United National Party (UNP) Government led by President J.R. Jayewardene, which brought the present Constitution into effect in September 1978, used its five-sixths majority in Parliament to introduce 16 amendments during its tenure. Except for one or two of those amendments, the objectives of the rest were to retain the parliamentary majority, weaken Opposition parties, and strengthen the hands of the executive president.
Key amendments
The First, Second, and Third Amendments were brought in to expand the powers of the president and to alter electoral conditions in favour of the ruling party.
Because the Second Amendment was brought in to facilitate Chelliah Rajadurai – a veteran politician elected as the first member of the Batticaloa constituency on behalf of the Tamil United Liberation Front in the July 1977 General Election – to join the UNP without losing his parliamentary seat, it was mockingly called the ‘Rajadurai Amendment’.
Following his victory in the October 1982 Presidential Election, Jayewardene introduced the Fourth Amendment to hold a referendum in order to extend the term of Parliament – where his party held a five-sixths supermajority – by another six years. Immediately following the Black July of 1983, the Sixth Amendment was brought in, which expelled Tamil political representatives from the north and east from Parliament.
Following the July 1987 Indo-Lanka Accord, the 13th Amendment was introduced to establish the Provincial Council system. This was the only exceptional amendment of the Jayewardene era that was brought about not in the interests of self-serving power, but due to international and domestic pressure.
Although President Chandrika Kumaratunga, who came to power promising the public that she would abolish the executive presidency, proposed constitutional reforms, she was unable to pass them.
Mahinda Rajapaksa, who assumed office in November 2005, made his powers limitlessly vast. Bringing in the 18th Amendment in late 2010, he removed the two-term limit preventing an individual from contesting the presidency more than twice, while also bringing independent commissions under the control of the presidency.
As a result of independent bodies such as the Police Commission and the Election Commission coming under the complete authority of the president, Sri Lanka moved towards single-person rule and family rule.
However, in an effort to restore democracy, the Good Governance (Yahapalana) Government led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe introduced the 19th Amendment in 2015, marking a significant departure in Sri Lanka’s constitutional history.
The president’s unlimited powers were curtailed and the presidential term was reduced to five years. The restriction prohibiting a president from contesting more than twice was re-introduced, and independent commissions were restored through the Constitutional Council.
For the first time in Sri Lankan history, presidential powers were shared with Parliament and the prime minister. However, the power struggle between the President and the Prime Minister created instability within the Government, preventing the country and its people from enjoying the benefits of that positive amendment.
Gotabaya Rajapaksa, who came to power after winning the November 2019 Presidential Election, claimed that the president’s hands were tied by the 19th Amendment and made its abolition his primary task. Through the 20th Amendment, the presidency once again became powerful.
The authority to appoint independent commissions reverted back to the president. Such unaccountable power led to flawed decision-making, ultimately causing an unprecedented economic collapse in the country.
Following the 2022 Aragalaya popular uprising, Wickremesinghe, who assumed the presidency, re-introduced certain provisions of the 19th Amendment through the 21st Amendment.
As the NPP Government approaches the completion of its second year in office, it submitted the 22nd Amendment to Parliament last week as its first constitutional amendment. The primary objective of this amendment is to increase the retirement age of judges in the superior courts (Court of Appeal and Supreme Court) by two years.
Several petitions have been filed in the Supreme Court questioning its constitutional validity. The legal community and Opposition parties have raised questions regarding judicial independence, the indirect influence the Executive branch could exert over the Judiciary through extensions of judges’ tenures, and the background behind bringing this amendment in a rushed manner.
The Government has announced that further action will be taken in accordance with the Supreme Court’s decision. Yet, there is little doubt that, for a Government holding a two-thirds majority in Parliament, being forced to abandon its very first constitutional amendment would constitute a massive political setback.
Despite opposition from the legal community, Opposition parties, and various international organisations – including the United Nations Special Rapporteur on the independence of judges and lawyers – the Government remains firmly determined to pass the 22nd Amendment at all costs.
History of opposition to amendments
When looking at the opposition that has currently arisen against the Government regarding this amendment through a historical lens, instances come to mind where earlier amendments and constitutional drafts faced even fiercer opposition. If there is one constitutional amendment in Sri Lanka’s political history that faced the most severe and violence-filled opposition, it is the 13th Amendment.
The 13th Amendment was introduced at the height of the second armed uprising launched by the Janatha Vimukthi Peramuna (JVP) against the Indo-Lanka Accord. It was passed in Parliament amid political assassinations and a turbulent atmosphere across the entire country.
When the draft constitution of 2000 (introduced during Kumaratunga’s presidency) – containing provisions for extensive devolution of power and replacing the executive presidency – was presented to Parliament, severe opposition broke out. Members of the UNP protested inside Parliament by burning copies of the draft. Ultimately, the Kumaratunga Government was forced to abandon the constitutional draft.
However, the 17th Amendment, introduced under the Kumaratunga administration, was the first attempt aimed at reducing the unlimited powers granted to the executive president by the 1978 Constitution and making State institutions independent.
In mid-2001, the Kumaratunga Government lost its parliamentary majority, leading to a political crisis. To retain power, she had to seek the support of the JVP. One of the main conditions imposed by the JVP in exchange for its support was the immediate passage of a constitutional amendment to limit the president’s powers and establish independent commissions. The Government operating with JVP support was referred to as the ‘probationary’ government.
Despite the intense political conflicts of the time, the 17th Amendment Bill was passed almost unanimously in Parliament on 3 October 2001, with 212 votes in favour. Following this, the Constitutional Council was created.
A restriction was imposed stating that the president could not make appointments to key positions without the recommendation or approval of this council. Several independent commissions were established, including the Election Commission, Public Service Commission, National Police Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, and Finance Commission.
However, political deadlocks among leaders regarding the appointment of members to the Constitutional Council prevented it from functioning fully on several occasions.
Despite strong opposition to the 18th Amendment introduced by the Mahinda Rajapaksa Government in late 2010 to remove the limits on a president’s terms in office, and the 20th Amendment introduced by the Gotabaya Rajapaksa Government in 2020 to re-increase presidential powers that were reduced through the 19th Amendment, no one was able to prevent them from being passed in Parliament.
Compared to past opposition, the resistance raised against the NPP Government’s amendment appears to have a different dimension. Some observers believe that because these are changes brought about by a new political force in a country long ruled by traditional political parties, the attention of Opposition parties and traditional organisations has turned heavily towards it.
Whatever the case may be, it is noteworthy that the current opposition has primarily been carried out on the platform of democratic political debate thus far, without leading to unrest.
The history of Sri Lanka’s constitutional amendments has revolved in a continuous loop of seizing power, retaining power, reclaiming power, and expanding power, rather than serving as a history of strengthening democracy and good governance. The truth is that no constitutional amendment from 1978 to the present day has aimed to reform the overall political structure of the country.
(The writer is a senior journalist based in Colombo)
(The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication)