This article is based on the speech delivered by the author at the recently held launch of ‘Constitutional Conversations’ by Dr. Jayampathy Wickramaratne attended by the Chief Justice, Attorney General, and Judges of the Supreme Court and of the Court of Appeal, among others
Unfulfilled promises
I am honoured to be invited to speak at the launch of Dr. Wickramaratne’s Constitutional Conversations. Dr. Wickramaratne, who has had a ringside view of the trajectory of Sri Lanka’s Constitution for over three decades, writes not as someone who has merely studied constitutional events from a distance, but as one who has lived through them – experiencing at first hand the successes, hopes, fears, disappointments and the unfulfilled promises of the constitution-making process.
Reading through the chapters of this book, one cannot help but regret the lost opportunities for meaningful reform and how over the years history has repeated itself in the process of constitutional making and of the tragic failure to learn from the lessons of history.
Dr. Wickramaratne became part of the reform process thirty-two years ago, in 1994, and to this day successive governments have failed in the efforts to replace the 1978 Constitution. Political opportunism, vacillation, the lack of political will, and the failure at consensus building, have doomed each of these efforts. Dr. Wickremeratne takes us through events which stalled every effort towards a constitution that would truly uphold the ideals of democracy and constitutionalism.
We are also reminded that three-fourths of the amendments to the Constitution were passed within the first decade of the birth of the Constitution when five-sixths of the Parliament was with one political party. As Dr. Wickramaratne shows in taking the reader through the travails of the constitutional process – both the process of constitutional amendment and the bid to have a new constitution- the failure of politicians to act as statesmen – to think of the broader interest of the nation rather than their own narrow parochial interests – have meant the failure of genuine constitutional reform.
Constitutional Conversations leaves us with the question as to how long more the people of Sri Lanka would have to wait for a Constitution with the Founding Constitutional Principles and Values that the Collective for Democracy and Rule of Law set out on the eve of the 2024 Presidential Elections including among other things human dignity, ethnic, gender and social equality, the supremacy of the constitution and the rule of law and non-concentration of state power in one individual or institution.
Key among Dr. Wickramaratne’s proposals is his insistence that any new constitution must be marked by a dynamic interpretation of constitutional provisions to advance justice and equality, a focus on social justice and participatory democracy, and a constitution that evolves rather than remains frozen in time.
Much of constitutional conversations centres on the theme of constitutional reform – its key issues, fundamental rights and the judiciary, and devolution – themes which have long been dear to Dr. Wickramaratne and which he continues to champion.
Safeguarding democracy, and constitutionalism
Ever present throughout constitutional conversations is the need to protect democracy and constitutionalism – and the sobering lesson of Sri Lanka’s own experience of elected governments.
Dr Wickremeratne’s experiences and his honest assessment of the development of Sri Lanka’s Constitution, remind us that democracy, constitutionalism and the institutions which hold them together can at no time be taken for granted – and that protecting them is part of a lived struggle.
Democracy needs to be defended sometimes from the very leaders who are elected at an election. An election, however free and fair, may not guarantee the protection of democracy or stop them if they overreach.
The temptation, will always be, to believe that this time, concentrated power will be used wisely; that leaders can be trusted with fewer checks because their cause is just and their intentions pure. Every democracy that has slid backward believed exactly that – right up until it could no longer reverse course.
Sri Lanka’s experience is that governments that win with large majorities are still governments that can be wrong, that can be tempted by their massive majorities, that can mistake a mandate for a blank cheque.
The history of Sri Lanka has shown that democracy and institutions have faced their biggest challenges at the hands of governments with large parliamentary majorities. The majoritarian Constitution of 1972 which also did away with post enactment judicial review, the 1978 Constitution skewed in favour of a powerful executive President, the 18th amendment to the Constitution rolling back the positives of the 17th , the 20th amendment to the Constitution pushing back against the 19th amendment, are few examples of how large Parliamentary majorities have resulted in democratic backsliding. In contrast the relatively pro- democracy 17th, 19th and 21st amendments were all the products of Parliaments where governments did not command super majorities and constitutional amendments were the products of consensus.
‘Protect us from temptation’
This brings us to the importance of constitutionalism. The idea – that power, even power that arrives through the ballot box, must be limited by the principles of constitutionalism. The entire purpose of constitutionalism is to protect us from that very temptation – including from ourselves, and from even leaders we may like and admire.
Dr. Wickramaratne frames this with a phrase worth remembering: constitutional supremacy means the Constitution stands above temporary political majorities – above the temporary will of whoever happens to hold office this year.
One of the most useful ideas the book offers is the distinction between two competing visions of where ultimate authority lies in a state.
In the British tradition -Parliament is sovereign. In some aspects Sri Lanka follows this in preventing post enactment judicial review. Even where the law infringes constitutional provisions, and even where Parliament itself has not followed its own proper internal processes. Whilst it may be argued that this model has its virtues in that it trusts the wisdom of elected representatives it has a fatal weakness. If Parliament is supreme, then a Parliament captured by a determined majority can rewrite the rules of the game itself – extend its own term, dismantle the courts that might check it, remove the safeguards that protect minorities – and there is, within that legal logic, no wrong being done. It is all perfectly ‘legal’.
Constitutional supremacy answers this by placing something above Parliament: a constitution that even the majority cannot casually amend, interpreted by courts empowered to strike down actions – legislative and executive – that violate it. Dr. Wickramaratne argues, and I think correctly, that constitutional supremacy serves democracy better than parliamentary supremacy, precisely because it protects democracy from its own majorities. It is not anti-democratic to limit majority rule. It is what makes majority rule safe to have in the first place.
Concentration of power
The book devotes a great deal of attention to a theme that will be familiar to anyone watching politics anywhere in the world today: the concentration of power in the executive, and other institutions of the state allowing themselves to be subsumed by an all-powerful executive.
In the United States, we see how the Supreme Court has expanded the boundaries of the executive Presidency- almost holding the President to be above the law. In the case relating to the immunity of President Trump from criminal action the dissenting judgment of Justice Sonia Sotomayor accused the majority of the court of ‘making a mockery of the principle, foundational to our Constitution and system of Government that no man is above the law.’
Dr. Wickremeratne treats the concentration of power in an executive presidency as having fundamentally disturbed the constitutional balance – weakening Parliament, undermining accountability, and diminishing the sovereignty that is supposed to reside in the people. He does not treat this as one design flaw among many that can be patched. He argues that piecemeal adjustment is not enough – that meaningful democratic consolidation requires structural change: collegial decision-making, collective responsibility, and power genuinely shared rather than concentrated in one office. Hence the need to abolish the executive Presidency.
Dr. Wickramaratne’s chapters on executive power, on the appointment and removal of the Prime Minister, and on strengthening Parliament all speak to the dangers of democratic backsliding. He warns that Sri Lanka’s democracy cannot be held hostage to the whims of successive Presidents who have concentrated power, weakened institutions and undermined accountability.
Steven Levitsky and Daniel Ziblatt, in their seminal work How Democracies Die, remind us that blatant dictatorship – fascism, communism, military rule – has largely disappeared from the world, and that most countries now hold regular elections; yet democracies still die – only by different, quieter means.
I quote: ‘There are no tanks in the streets. Constitutions and other nominally democratic institutions remain in place. People still vote. Elected autocrats maintain a veneer of democracy while eviscerating its substance.
Because there is no single moment-no coup, declaration of martial law or suspension of the constitution-in which the regime obviously crosses the line into dictatorship, nothing may set off society’s alarm bells. Those who denounce government abuse may be dismissed as exaggerating or crying wolf. Democracy’s erosion is, for many, almost imperceptible.’
Democratic backsliding rarely announces itself with tanks in the street. It usually begins quietly-institutions persuaded to defer to an executive ‘just this once,’ an institution whose independence is trimmed, an amendment or a law that is allowed to be passed to address ‘the crisis at hand.’ Each step is small. Each step is defensible in isolation, but indefensible when one looks at the big picture. And each step makes the next step on the road to autocracy easier.
The book takes us through the rise and fall of Sri Lanka’s Nineteenth Amendment-a reform that clawed back power for Parliament and strengthened checks on the executive-only to be largely repealed by the 20th amendment. The author makes a striking point that the lasting importance of that amendment lies not in how long it survived, but in the democratic ideal it expressed – a demonstration that limits on executive power were possible, and that they enjoyed genuine public support.
However the fate of the 19th amendment also warns us that progressive reform can never be taken for granted and that popular will is fickle and can change in a moment. Hence the need to strengthen the institutions from backsliding, independent of those who may man them for the time being.
A constitution that limits power on paper is meaningless if there is no institution independent enough to enforce that limit.
Dr. Wickramaratne draws a comparison many of us will recognise: the American case of Marbury v Madison, in which the United States Supreme Court, under Chief Justice Marshall, first asserted the power of judicial review – the authority of courts to strike down laws that conflict with the constitution.
That single doctrinal move, over two centuries ago, is the ancestor of every modern court that today tells an elected government: this, you may not do. In the history of the second republican constitution, the decision of the Supreme Court in the Kalawana Determination where the Government attempted to thwart the outcome of an election petition and to seat an unseated member in Parliament and the decisions of the Court of Appeal and the Supreme Court in the cases relating to the dissolution of Parliament in 2018 are notable examples as to how the Sri Lankan Courts demonstrated their will to ensure constitutionalism.
An independent judiciary is not a technicality. It is the mechanism by which constitutional supremacy becomes real rather than aspirational. Human rights that exists only on paper, unenforceable and undefended, are not rights – but rather are mere wishes. The book insists that fundamental rights must be real and enforceable, not merely aspirational, and that this depends entirely on a judiciary with the courage and independence to act as a check, even against a popular government.
But the judiciary cannot do this alone. A resilient democracy needs a network of institutions reinforcing one another: a Parliament with genuine oversight power rather than a rubber stamp; independent commissions insulated from the executive of the day; a public service and police that answer to law rather than to political patronage; a free and independent media – be it state or private media- that can expose overreach before it hardens into precedent a strong and independent legal profession and a vibrant civil society.
When any one of these institutions is captured or hollowed out, the others are weakened too -Backsliding happens when any one of these pieces is allowed to erode – when an institution is quietly weakened, when a legislature stops asking hard questions, when ’emergency’ powers become permanent, when constitutional supremacy is treated as an inconvenience rather than a safeguard, when media whether they be state or private become mouthpieces of any government failing in their role to be sentinels over government.
Devolution-A constitutional necessity
There is one more dimension of the book I want to bring to you. The author argues that in a plural society – one with real ethnic, religious, or regional diversity – devolution of power is not a political concession granted grudgingly from the centre but rather a constitutional necessity.
A state that centralises all authority in one office, unchecked by courts or a genuine legislature, is also a state more prone to governing for the majority community at the expense of minorities. Meaningful power-sharing, the book argues, is indispensable not only for preserving national unity but for laying the foundation for lasting peace between communities.
Democracy gives us the right to choose who governs. Constitutionalism is what stops the chosen from ruling without limit. Institutions – courts, legislatures, election bodies, a free media , an independent legal profession, civil society – are the instruments through which that limit is actually enforced, day to day, case to case. And devolution, in divided societies, is how constitutionalism extends its protection beyond the individual to the community.
The book’s central lesson, to my mind, is this: constitutional reform is never a one-time achievement to be filed away. It is a continuing conversation – as the title itself suggests – that each generation must be willing to have again, honestly, and sometimes at real political cost.
Dr. Wickramaratne reminds us that a constitution is a living commitment we renew – in our courts, in our legislatures, in the vigilance of a free press, and in the everyday insistence that no office, however popular, stands above the law. That is how democracy survives its own successes and its own crises alike. That is the conversation this book invites us to keep having.