TY - JOUR AU - Ratnapala,, Suri AB - Abstract The history of Sri Lanka is highly instructive of the dynamics of constitutional evolution in a post-colonial, multi-ethnic, and economically challenged Asian nation. Sri Lanka is one of the few ex-colonies where constitutional change has happened without military involvement. Citizens have changed their government 10 times by generally fair and free elections. In the first three decades after independence, the country’s judiciary enjoyed an enviable reputation for independence, integrity, and competence. The public service, though poorly rewarded and resourced, maintained a praiseworthy standard of administrative impartiality and competence. Sri Lanka had, and still has, one of the highest rates of literacy in the developing world and scores creditably on human development indicators. Despite these impressive achievements, the country has a chequered record of constitutional government since independence. It has been ruled for long periods under emergency rule, and the nation’s two republican constitutions have a poor record of maintaining constitutional democracy and basic rights and freedoms. The nation’s most recent efforts at constitutional reform, despite some notable successes, have stalled as a consequence of hyper-partisanship and opportunistic political strategizing. This article examines the post-independence constitutional history of the nation, prognosticates its prospects of constitutional revival, and draws important lessons from the failure of the current constitutional project. Three insights from Sri Lanka’s faltering reform effort The political history of Sri Lanka since independence is instructive at many levels. This article highlights three insights of theoretical and practical importance to constitutional reformers. The first lesson is that, in embarking on constitutional change, history matters. This we find is true whether the change is incremental or radical. Douglass North, the Nobel Laureate economist put it this way: History matters. It matters not just because we can learn from the past, but because the present and the future are connected to the past by the continuity of a society’s institutions. Today’s and tomorrow’s choices are shaped by the past. And the past can only be made intelligible as a story of institutional evolution.1 The state did not wither away after proletarian revolutions as Marx had predicted but became stronger and more authoritarian. The American Revolution overthrew the British yoke but built on the foundations of English liberties and the common law. History can both facilitate and obstruct constitutional reform. This has been the case in Sri Lanka. The second lesson is that, in a democracy, radical or discontinuous change, as North terms it, requires much hard work and good fortune. It is different where the proponents of radical change monopolize constituent power or enjoy a super majority in the constituent body that can override opposition. This fact is amply demonstrated by the constitutional history of Sri Lanka. The Donoughmore Constitution of 1931 and the Soulbury (Independence) Constitution of 1948 were enacted by imperial orders in council. The First Republican Constitution of 1972 was autochthonously adopted by the United Front coalition following its overwhelming victory at the general elections of 1970. The Second Republican Constitution of 1978 was enacted by the United National Party (UNP) government with scant public debate after the opposition was decimated in the general elections. When no party has constituent power to make discontinuous change unilaterally, two things become apparent. The success of constitutional reform will depend on consensus building. This requires much political skill, statesmanship, and compromise. Generally, consensus is easier to achieve if the reform is incremental rather than wholesale. The current constitutional reform project was commenced by a fragile government coalition enjoying a two-thirds majority sufficient to enact constitutional amendments that do not touch the referendum-protected basic provisions such as the fundamental rights and franchise. Hence, the enactment of a radical new constitution would require a two-thirds parliamentary passage as well as approval at a referendum. The breakup of the coalition in October 2018 has ended the project in the short run at least. The third lesson is that constitutional reform efforts cannot be dissociated from good governance. Governments that seek significant constitutional change without constituent power to impose their will must earn the trust and goodwill of the public. These will be lost when the political class shows disrespect for the norms and conventions of constitutional democracy and, by its actions or inactions, harm or neglect the formal and informal institutions that are essential to the functioning of liberal democracy, including civil liberties, incorrupt official behaviour, fair and efficient administration, and law enforcement and the provision of public goods and social security. A government with a poor record on these criteria is unlikely to mobilize non-partisan support necessary for a reform programme. Hence, it is our view that constitutional reform must begin with the revival of the vital institutions of constitutional democracy and a return to a political culture of civil discourse. A high degree of constitutionalism can be achieved even without a rigid written constitution as the United Kingdom and New Zealand have shown the world. A chequered history of constitutional government Sri Lanka’s ambitious constitutional reform project that commenced in 2015 with the apparent support of all major political parties has ground to a halt. The immediate cause is the breakup of the governing coalition that steered the process. However, the history that bears on the constitutional destiny of Sri Lanka goes back many centuries. There are two historical factors that critically shape the politics of constitutional change in this island nation. One is the mistrust between the two major communities—the Sinhalese and the Tamil, which have roots in a history of conflict dating back to the second century BCE conquest of northern Sri Lanka by the Chola invaders of South India.2 This mistrust, encouraged and amplified by opportunistic politicians of both communities, is a persistent, but not insuperable, obstacle to a lasting constitutional settlement. Sri Lanka today is a cosmopolitan society comprising three major ethnic communities. According to the last Census done in 2012, Buddhists make up 70.1 per cent of the population, Hindus 12.6 per cent, Muslims 9.7 per cent, and Christians 7.6 per cent. Buddhists are predominantly Sinhala and Hindus predominantly Tamil with significant minorities of Christians within each community.3 Inter-communal harmony and national identity cannot, in the authors’ opinion, be achieved without a constitutional framework that secures representative democracy and basic civil rights and liberties of citizens irrespective of ethnicity, language, or religion. The second factor is the tradition of constitutional democracy that began in the British colonial period and has withstood many crises and periods of authoritarian rule by elected governments. The colony of Ceylon was granted limited self-government by the Donoughmore Constitution of 1931, accompanied by universal adult suffrage. In 1948, the nation was given independence with dominion status and a parliamentary system of government. Sri Lanka is a rare ex-colony where constitutional change has happened without military involvement. Citizens have also changed their government 10 times by generally fair and free elections. In the first three decades after independence, the country’s judiciary enjoyed an enviable reputation for independence, integrity, and competence. The public service, though poorly rewarded and resourced, maintained a praiseworthy standard of administrative impartiality and competence. Sri Lanka had, and still has, one of the highest rates of literacy in the developing world and scores creditably on human development indicators.4 These are impressive achievements given the country’s chequered record of constitutional government. There have been long periods of emergency rule when basic liberties were suspended. The general elections of 1956, 1970, and 1977 held under the first-past-the-post (FPTP) system decimated the parliamentary opposition handing overwhelming power to the elected governments to do as they please. The country was racked by two Marxist-inspired insurrections and a 30-year ethnic civil war that, by some estimates, claimed more than 80,000 lives5 and had catastrophic effects on governance, the economy, and race relations. The 1978 Constitution introduced a Gaullist-type system with a powerful executive presidency that allowed incumbents to intimidate and manipulate by coercion and patronage the legislature, the judiciary, the public service, and the media. The feared descent to tyranny was arrested by the presidential and parliamentary elections of 2015, which produced a coalition government committed to important constitutional reforms that trimmed the presidential powers. These reforms were enacted by the 19th amendment of the Constitution. However, the more comprehensive reform agenda commenced by Parliament was aborted in 2018 by President Maithripal Sirisena’s unconstitutional attempt to transfer power to the opposition leader Mahinda Rajapaksa. Although the status quo was restored by the courts, the rupture of the government coalition has ended the reform process until at least the election of a new Parliament. A brief constitutional history of independent Sri Lanka The constitutional history of Sri Lanka after independence informs and shapes the debates about the contents of the proposed constitution. The current Constitution of 1978 is the third after the Soulbury Constitution and the first republican Constitution of 1972. The Soulbury Constitution The first Constitution, drafted by the eminent constitutional law scholar, Sir Ivor Jennings, is also known as the Soulbury Constitution, after Viscount Soulbury, the chairman of the Commission that settled the principles of the Constitution. It came into effect when Ceylon (as it was then known) became a dominion.6 Largely based on the Westminster model of government, the titular head of state was a governor-general, representing the British monarch. There was a bicameral legislature with the members of the upper house, the Senate, appointed on a party basis, and the lower house, the House of Representatives, elected on a FPTP system. Executive power was vested in a Cabinet headed by a prime minister. The apex court was the Supreme Court where judges were appointed by the governor-general on the advice of the prime minister. The pre-independence practice of allowing appeals to the Privy Council was continued. All of the other judges were appointed by an independent body, the Judicial Services Commission (JSC), comprising the chief justice and two other Supreme Court judges. The Constitution empowered the JSC to promote, transfer, and discipline these lower court judges. Section 29 of the Constitution prohibited laws that discriminated on grounds of religion or ethnicity and prescribed the procedure for amending the constitution. In Bribery Commissioner v Ranasinghe,7 Lord Pearce, delivering the advice of the Board, observed in an influential dictum: There follow (b), (c) and (d) [of section 29(2)] which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the constitution; and that these are therefore unalterable under the constitution.8 Constitutional law scholars have both supported and criticized this reading of section 29(2) of the Soulbury Constitution as an eternity clause. First republican Constitution In 1971, the Sri Lanka Freedom Party (SLFP) and its coalition parties won a sweeping majority in Parliament despite a small swing in the vote because of the FPTP system. The coalition, claiming a mandate to adopt a new constitution, opted for an autochthonous process and converted the Parliament into a constituent assembly, thereby repudiating any need to show legitimacy of complying with the amendment procedures provided in a constitution imposed by the former colonial power. Asanga Welikala argues that the dictum of Lord Pearce had ‘momentous political consequences in convincing the Ceylonese Opposition about the need to establish a republic and to do so by way of a constitutional revolution, because that was the only method by which the purportedly “unalterable” provisions shackling parliamentary sovereignty could be disposed of.’9 The Constitution that resulted from this constituent assembly effected many changes: (i) the country was declared to be a republic with an appointed titular president replacing the governor-general who represented the British Crown; (ii) the country indigenized its name from ‘Ceylon’ to ‘Sri Lanka’; (iii) the unicameral National State Assembly replaced the old Parliament whose Senate had been previously abolished in 1971; (iv) the post enactment judicial review of legislation was abolished, and a limited right of challenging bills before the Constitutional Court prior to enactment was inserted; (v) Buddhism was given a foremost place in the Constitution while respecting the rights of others to practise their faith without hindrance; (vi) a chapter on non-justiciable directives of state principles as well as a chapter on fundamental rights justiciable only in pre-enactment review were introduced; (vii) the independent Judicial Service Commission (JSC) and the Public Service Commission (PSC) were abolished, and the power of appointment and discipline was assumed by the Cabinet and advised by two advisory boards; (viii) existing legislation was grandfathered; and (ix) appeals to the Privy Council were abolished. The 1972 Constitution was drafted and promulgated under the state of emergency that was declared on 5 April 1971 and ended only in June 1977. The Public Security Ordinance gave the executive unbridled powers to make emergency regulations that overrode constitutional safeguards of civil liberties, the law of the land, and the will of Parliament. This meant that, in practical terms, the 1972 Constitution was in suspension during five years of its six-year life. Second republican Constitution Sri Lanka’s second republican Constitution was promulgated on 7 September 1978. At the 1977 general election, the UNP, helped by the FPTP system, won an overwhelming majority, decimating the left coalition. Using its majority, the UNP, headed by J.R. Jayawardene, promulgated a Constitution that introduced the following radical changes: (i) in imitation of the Gaullist Constitution of the sixth French Republic, the second republican Constitution replaced the titular president with an executive president who had wide-ranging powers over the formation and conduct of the executive government, the appointment of judges and other high officers of the state, and control of the life of the Parliament, which he could dissolve at will after one year of its term,10 and who enjoyed blanket immunity for actions; (ii) a system of proportional representation replaced the FPTP system; (iii) it was possible to extend the term of parliament by a referendum; (iv) the Supreme Court was reconstituted with several judges not reappointed under the new Constitution; (v) fundamental rights became justiciable under strict procedural conditions; (vi) the JSC and the PSC were restored; (vii) key provisions became referendum protected; and (viii) the bar against post-enactment judicial review of primary legislation was retained. In the four decades of its existence, this Constitution has been amended 19 times. Some amendments are particularly significant. The 13th Amendment On 29 July 1987, India and Sri Lanka signed the Indo-Lanka Accord,11 which provided for the introduction of Indian armed forces known as the Indian Peace Keeping Force as well as a requirement that the government provide a measure of devolution to the Tamils and those in the rest of the country, through a system of Provincial Councils. Violence against the Tamils had reached their peak in the race riots of July 1983 unleashing unprecedented destruction of life and property. India, with a population of about 70 million Tamils within its own borders, asserted a right to intervene to protect the Tamils. The 13th Amendment gave effect to this provision in the Indo-Lanka Accord, which required the establishment of Provincial Councils. Violent protests against the amendment bill broke out. Opponents of the bill argued before the Supreme Court in a pre-enactment challenge that the proposed amendment violated the unitary character of the state entrenched by Article 2 and the sovereignty of the people as set out in Article 3. Amendments inconsistent with these provisions require approval of the people voting at a referendum. The 13th Amendment was enacted after the Supreme Court by a narrow majority held that the bill did not require approval at a referendum to become law.12 The Amendment included provisions for Parliament by law to merge two or three provinces. In the case of the Northern and Eastern Provinces, section 37(1) of the Provincial Councils Act no. 42 of 1987 stipulated that no merger should take place until the ceasefire between the government and the Tamil separatist groups brokered by India was fully effective and that the militants had surrendered all of their arms. However, the government controversially amended section 37(1) by Emergency Regulations to allow the merger of the two provinces if ‘operation [has] been commenced to secure complete surrender of arms, ammunition, weapons, explosives or other military equipment by such groups’. The two provinces were merged on 9 September 1989. The new North-Eastern Province, which contained much of the Tamil nation claimed by the separatists, continued in existence until October 2006 when the Supreme Court unanimously declared that the merger of the provinces was unconstitutional and ordered their de-merger.13 For many Sri Lankans, the more alarming aspect of the Indo-Lanka accord was the obligation that the Sri Lankan state undertook under international law to provide for a substantial measure of devolution in its Constitution. The 18th and 19th Amendments In 2001, following cross-party negotiations, the Parliament enacted the 17th Amendment that made presidential appointments to key offices, including the JSC, the PSC, the National Police Commission, and the Elections Commission conditional on recommendations of an independent Constitutional Council constituted through a non-partisan process.14 This was a reform that promised to change the ground rules of governance. The Constitutional Council functioned reasonably well until the election of President Rajapaksa in 2005. The Constitutional Council’s flawed design allowed Rajapaksa to subvert its operation by delaying and obstructing the appointment of members and the denial of resources.15 In October 2010, Parliament, at his behest, enacted the 18th Amendment to repeal the 17th Amendment to re-empower the president to make judicial appointments at his pleasure. The 18th Amendment also removed the two-term limit of the president. When this amendment was challenged, the Supreme Court held that the proposed amendment did not affect the franchise because the people had one more person to choose from who was hitherto disqualified and that this enlarged the franchise. Executive dominance of the judiciary and the public service was complete. After President Rajapaksa was defeated in 2015, Parliament enacted the 19th Amendment. This Amendment restored the two-term limit on the presidency, prevented the president from dissolving Parliament during the first four years and six months of its life except on a request by Parliament, and re-established the Constitutional Council with several specialist commissions empowered to appoint persons to key public offices. The 19th Amendment was shaped by a history where Prime Minister Ranil Wickremasinghe, who commanded majority support in Parliament, was summarily removed, and Parliament was dissolved by President Chandrika Kumaratunge. The ensuing election resulted in a coalition government of parties headed by Kumaratunge. Wickremasinghe, who was the prime mover behind the 19th Amendment eliminated the power of the president to remove a prime minister who has the confidence of a majority of members of parliament. Both the Republican Constitutions stress that sovereignty resides in the people. Under the Westminster system, the monarch’s representative—the governor general—could in extraordinary circumstances and subject to constitutional convention, remove the prime minister and dissolve parliament as the Australian governor general did in dismissing Prime Minister Gough Whitlam in 1975 when his party failed to secure supplies to keep the government functioning. However, unlike the governor-general, who is expected to be non-partisan, the Sri Lankan president is a principal political contender who is prone to act in the partisan interest. It was also possible under the classic Westminster system for a prime minister who enjoys parliamentary confidence to advise the early dissolution of the lower house to seek a fresh mandate for government policies. However, the Fixed-term Parliaments Act 2011 (UK) forbade early elections unless the prime minister loses a vote of confidence or if two-thirds of the members of the House of Commons vote in favour of an early election.16 This brings the UK Constitution abreast of a few other parliamentary systems such as Germany, Israel, and the Australian states of Victoria and South Australia. The 19th Amendment adopted the substance of the Fixed-term Parliaments Act. Significantly, the 19th Amendment imposed a disability on persons holding dual nationality—two of Rajapaksa’s brothers were dual nationals—from being members of parliament or from contesting the presidency. When the amendment bill was challenged in the Supreme Court, the question whether this disability affected the franchise and so needed referendum approval was not addressed. Pressure for constitutional change Thomas Jefferson observed that since the ‘earth belongs in usufruct to the living’, each generation as custodians of the constitution may adapt it to suit changing circumstances.17 The multiple changes to Sri Lanka’s Constitution within a single generation have had more to do with short-term political expediency than with Jefferson’s rationale. That said, there are compelling reasons for the reform project commenced in 2015 that seeks to replace the existing Constitution instead altering it in a piecemeal fashion. Failure of the Gaullist model of an executive presidency There is widespread dissatisfaction with the way successive presidents have abused their powers under the present Constitution adopted in 1978. This Constitution was modelled on the Gaullist Constitution of France but with even more powers conferred on a directly elected president. The Gaullist Constitution has worked reasonably well in France where political traditions and culture restrain the formidable powers of the president. In Sri Lanka, the system has failed in the absence of comparable restraints.18 Senior officials in the defeated administration of President Rajapaksa have been accused of abusing power and of attempts to create a dictatorship. There are allegations of widespread corruption and nepotism and the abduction and murder of journalists, critics, and personal enemies of powerful individuals. Some critics allege that the investigation and prosecution of these crimes are being obstructed by powerful elements within the current establishment. The 1978 Constitution allowed the president to make a mockery of democracy by the dissolution at will or the threat of dissolution of Parliament and by causing defections from opposition parties through presidential patronage including the offer of ministerial positions. At one time, all of the members of parliament in the government benches held ministerial positions entitling them to lavish benefits such as free housing and convoys of vehicles. All of the political parties at the 2015 presidential and parliamentary elections pledged to abolish the executive presidency and return it to a parliamentary system of government. Imperative of ethnic harmony The UNP, supported to greater or lesser extents by other parties, believe that it is time to finally resolve the ethnic discord between the majority Sinhalese and the minority Tamil communities that, since independence, has exploded into major racial riots, the most horrific of which took place in 1983. That conflagration marked the beginning of an ethnic civil war between government forces and the separatist organization, the Liberation Tigers of Tamil Eelam (LTTE), which lasted 35 years. There is also intense international pressure on the Sri Lanka government to address Tamil grievances by measures including allowing for more self-government in the provinces. Many foreign governments designated the LTTE as a terrorist organization and helped the Sri Lankan government defeat them by providing intelligence and armaments.19 Some of them hold the government to its commitment to address legitimate Tamil grievances. The United Nations Human Rights Council (UNHRC) has probed allegations of war crimes by Sri Lankan armed forces in bombing hospitals and killing prisoners of war during and after the final battle in 2009. The Rajapaksa administration denied these charges and opposed resolutions brought against the government. However, the current government co-sponsored a resolution at the UNHRC that required ‘a political settlement by taking the necessary constitutional measures’.20 This resolution also encouraged the government’s ‘efforts to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population’. It ‘encouraged the Government to ensure that all the Provincial Councils are able to operate effectively, in accordance with the Thirteenth Amendment to the Constitution of Sri Lanka’.21 However, the international community is losing patience with the pace of implementation of the UNHRC recommendations.22 Reform of the electoral system The FPTP system of parliamentary elections held under the Soulbury and the 1972 Constitutions had the virtues of (i) producing stable governments; (ii) providing local area representation; and (iii) keeping out sectarian micro-parties. Its principal vice was that it failed to represent fairly the choices of the national electorate and, as shown in the general elections of 1956, 1970, and 1977, tended to produce disproportionately large parliamentary majorities. The 1978 Constitution introduced a system of proportional representation that had the opposite outcomes. Single party majorities in Parliament became hard to attain, and the powerful executive president was able to manipulate Parliament by patronage and induced defections across parties. The system also encouraged the emergence of small sectarian parties. The need to achieve a balance between fair representation and stable government under a new parliamentary system is generally recognized across party lines. The Steering Committee of the Constitutional Assembly is considering the German and New Zealand models of mixed member proportional representation (MMP) for adoption in a new constitution. Depoliticization of the judiciary and public services The greatest factor in the decline of the rule of law and constitutional government in Sri Lanka has been the progressive politicization and corruption of the judiciary and the public services, including the police and armed forces under successive governments at least since 1970.23 The formal independence of constitutional guardians is of no avail if the guardians themselves are corrupt or beholden to political masters. The 1978 Constitution restored the independent JSC and the PSC that existed under the Soulbury Constitution. However, the membership of these commissions was ultimately a matter of presidential discretion. The chief justice and other Supreme Court justices who comprised the JSC were appointed by the president, as were the chair and members of the PSC. The politicization and debasement of the senior judiciary has occurred over several decades. The present Constitution when adopted terminated the tenure of sitting judges. Judges who were seen as incompetent or not ideologically favourable were not reappointed. A lawyer from the private bar was appointed as chief justice, but he ran afoul of the president. Impeachment proceedings were launched against him but not carried through.24 Thugs were encouraged to stone the houses of some judges. These measures drew little reaction from the senior members of the bar who were supporters of the UNP. The degradation of the judiciary continued under the government of President Chandrika Kumaratunge. At the behest of the Minister of Justice Gamini Lakshman Peiris, Shirani Bandaranayaka, a legal academic with little law practice experience, was appointed to the Supreme Court. She would have been unqualified for appointment to the highest court in most other jurisdictions. President Kumaratunge also fast-tracked Sarath Silva to the position of chief justice despite legal proceedings challenging his appointment and allegations of his misuse of power as attorney-general.25 Silva’s tenure as chief justice lasted from 1999 to 2009, a period in which the reputation of the Sri Lankan judiciary suffered immeasurably. Three events help to explain the loss of public confidence in the judiciary. First, when the tsunami of 2006 devastated parts of the country and aid poured in, it was alleged that Rajapaksa, then a government minister, had illegally diverted funds to a private account that he controlled. Silva heard the case against Rajapaksa for corruption. Despite the fact that he had been the best man at Rajapaksa’s wedding, Silva did not see fit to recuse himself.26 He berated the complainant, imposed a fine on him, and exonerated Rajapaksa. After he retired, Silva publicly admitted at a political rally that he had favoured Rajapaksa and apologized to the people.27 Second, when Kumaratunge was elected as president for the second time, he administered the oath of office to her before her first term had ended. According to Kumaratunge, Silva had assured her that she could serve for the unfinished term plus the new six-year term. However, when a case was brought challenging the term of office, without recusing himself, Silva heard the case and held that Kumaratunge’s term of six years began at the time she took her oaths and not at the expiration of her first term of office.28 Third, Silva heard many fundamental rights cases that alleged government fraud and corruption. These cases were heard based on affidavits. Many of his verdicts imposed fines on various public servants, even though there was no provision for such penalties. This violated the basic rules of criminal law, procedure and evidence.29 Silva routinely excluded independent-minded judges from the benches of the Supreme Court that heard politically sensitive cases.30 Public criticism of Chief Justice Silva was not an option because he was noted to abuse the contempt of court power and imprison persons who criticized his judgments. President Rajapaksa appointed Shirani Bandaranayake as chief justice in 2011. Shortly thereafter, Rajapaksa appointed her husband as the head of a state-owned enterprise with a lucrative salary. Chief Justice Bandaranayake delivered a judgment on the unconstitutionality of the Divineguma Bill that displeased Rajapaksa. An ugly and illegal impeachment process followed. The Supreme Court ruled that the parliamentary select committee proceeding that had led to the impeachment was unconstitutional,31 and the Court of Appeal by writ of certiorari quashed the finding against the chief justice. Nevertheless, Bandaranayake was hounded out of office in disregard of the superior court rulings.32 Her replacement was Mohan Peiris, a former attorney-general who was widely perceived to be a close friend of one of Rajapaksa’s powerful siblings, the secretary of defence. The debasement of the judiciary unfortunately continued after the 2015 election presidential election. The newly elected president, Maithripala Sirisena, who had defeated Rajapaksa, publicly announced that Pieris had visited him and begged him to retain him in office, promising in return to give any judgment that the government wished in its favour.33 While Pieris was out of Colombo, he was summarily removed from office by an executive order on the basis that his appointment was ineffectual because of the illegality of his predecessor’s dismissal. Bandaranayake was restored to the office but resigned at the end of the first day back. All of these events led to a steep drop in the confidence of the public and the professional class. Mechanics of the process In 2015, the newly elected Parliament established a committee of the whole house, designated the Constitutional Assembly, which was entrusted with the task of developing proposals for a new constitution. The Constitutional Assembly is the Parliament exercising its constituent power under another name. The Constitutional Assembly appointed a Steering Committee and six sub-committees comprising nominees of all of the parties represented in Parliament. The Constitutional Assembly also established a Public Representations Committee for Constitutional Reforms (PRC) with a mandate to consult and report on public views. The PRC held public consultations in all districts of the island and reported its recommendations. The sub-committees also submitted their reports to the Steering Committee. The Steering Committee produced its own interim report that not only identifies areas of broad agreement but also reveals deep disagreements on some proposals.34 All of these reports have now been presented to the Constitutional Assembly.35 A Panel of Experts appointed by the Constitutional Assembly has been instructed to develop a preliminary draft of a new constitution based on these reports. They have commenced work on this task despite the difficulties of reconciling the policy differences among the parties. The public initially seemed largely unaware of the process despite the information on public record. However, by the middle of 2017, the initiative had attracted the attention of many stakeholders, such as the influential Buddhist clergy, civil society groups, and various ethnic factions. Unfortunately, apart from constructive public discussion, there is also a good deal of misinformation and misunderstanding of issues. Some opponents of the exercise have falsely claimed that the proposed constitution would eliminate the special status of Buddhism under the existing Constitution and create a federal system leading to the loss of national sovereignty. The proposed new Constitution will become law only if Parliament passes it by a two-thirds majority and it is approved by a majority of the people voting at a referendum. The termination of the government coalition that commanded a two-thirds parliamentary majority has effectively derailed the reform project. We began this article with three propositions concerning constitutional change: (i) that history matters; (ii) that in a democracy in which no party commands overwhelming constituent power radical or discontinuous constitutional change requires assiduous consensus building; and (iii) that constitutional reform efforts cannot be dissociated from good governance. We consider these factors in the light of Sri Lanka’s post-colonial experience. The long shadow of an ancient conflict The most formidable obstacle to a lasting constitutional settlement is the mistrust between the nationalist elements within the majority Sinhala and the minority Tamil communities. The history of conflict between the Sinhala and Tamil peoples dates back to the first conquest of the Anuradhapura Kingdom by Tamil invaders from South India in the second century BCE. This conflict lay dormant through 450 years of European colonial rule but was reignited by the 30-year civil war between the security forces and the Tamil separatist movement, the LTTE. Sinhala nationalism draws much inspiration from the Mahawansa, the Great Chronicle of Sri Lanka, which was composed by Buddhist monks in the late fifth or early sixth century CE. Part accurate historical narrative and part patriotic myth, the chronicle has influenced the mindset of the Sinhalese Buddhist population for centuries. The highlight of this narrative, which most Sinhalese children are taught in school, is the epic battle waged by the Sinhala King Dutugemunu against the Tamil King Elara to liberate the northern Kingdom of Anuradhapura from the grip of the Chola Empire of southern India. Dutugemunu’s victory in the battle for the strategic fortress at Vijithapura (circa 162 BCE) became the stuff of legend and Dutugemunu the greatest Sinhala hero bar none. Such is the aura of his name that prominent Sinhalese politicians sometimes style themselves as modern Dutugemunus. The implicit message is that they are modern-day protectors of the Sinhalese from the Tamils who are portrayed as the descendants of ruthless invaders from India who decimated a flourishing Sinhala agrarian civilization centred in the ancient cities of Polannaruwa and Anuradhapura. The fact that less than 20 miles from Sri Lanka 72 million Tamils inhabit the Indian state of Tamil Nadu gives added potency to the narrative. Politicians of all stripes in Tamil Nadu support the political claims of Tamil politicians in Sri Lanka. Many Sinhalese believe that, although they are a majority in their country, they are a small minority in a region hostile to them. Following the civil war, Tamil politicians continue to press for increased autonomy for the Northern and Eastern Provinces, a region considered by Tamil nationalists as the traditional homeland of the Tamil people. They are dissatisfied with the extent of devolution under the 13th Amendment of the Constitution enacted to implement the Indo-Lanka Peace Accord of 1987. The idea of regional autonomy based on the principle of subsidiarity is formally accepted by all major parties, but its implementation is impeded by fears of territorial fragmentation held by Sinhala nationalists. Two previous attempts at devolution were derailed by Sinhala nationalist protests. The first attempt was the 1957 Bandaranaike–Chelvanayakam Pact between the Prime Minister Soloman Bandaranaike and the leader of the Federal Party Samuel Chelvanayakam representing Tamil interests.36 It provided for the establishment of regional councils with delegated powers over specified subjects including agriculture, lands, health, industry, and fisheries. However, under intense Buddhist nationalist pressure, Prime Minister Bandaranaike tore up the pact. The later UNP government of Dudley Senanayake attempted a similar pact in 1965 that was also abrogated under political pressure.37 The failure of these attempts owes much to the hypocritical and opportunistic behaviour of the two major political parties, which fiercely resisted in opposition measures that they championed in government. The Indo-Lanka Accord was preceded by a period of Indian intervention involving the violation of Sri Lanka’s airspace, the training of Tamil Tiger fighters in India, and unofficial but firm pressure on the Sri Lankan government to resolve the conflict with the Tamil rebels through a large measure of devolution to the Northern and Eastern Provinces.38 The Accord and the enactment of the 13th Amendment, which was designed to implement it, led to widespread rioting and looting in the non-Tamil-speaking areas of the country because it was seen as dividing the country. Former President Rajapaksa, then an opposition parliamentarian, was at the forefront of these demonstrations, but, later, when president, he assured his Indian interlocutors that he was in favour of ‘13+’ which was interpreted as a willingness to go beyond the concessions contained in the 13th Amendment.39 After decades of opposition, the majority of people appear to have accepted the Provincial Councils established by the 13th Amendment and do not see them as a threat to the unitary status of the country.40 Many Sri Lankans, though, would like to see the Provincial Councils abolished, not because they are perceived as stepping stones to separation but, rather, because they are widely seen as corrupt, redundant, inefficient, and highly burdensome on the taxpayer. Strong international pressure for more regional autonomy for Tamil areas of the north and east continues. UNHRC resolutions also require accountability for war crimes alleged to have taken place during the final battles with the Tamil Tigers in 2009. The UNHRC chief, Prince Zeid, recently warned the Sri Lankan government that, if it further delayed any investigation and trials, other states would be compelled to exercise their universal jurisdiction under international law and try suspected war criminals.41 The interim report of the Steering Committee states that the country will be a ‘Free, sovereign and independent Republic’.42 The report conspicuously avoids the term ‘unitary’ and, instead, uses a Sinhalese term ‘aekiya rajyaya’ and a Tamil term ‘orumiththa nadu’ to describe what is essentially a unitary state. The report defines these words as meaning ‘undivided and indivisible … in which the power to amend the Constitution, or replace the Constitution shall remain with the Parliament and the People of Sri Lanka’.43 The report also proposes that Provincial Councils and local bodies will be prohibited from declaring independence or secession and that the centre may exercise extraordinary powers to ensure the territorial integrity or sovereignty of the nation.44 The centre will retain power to legislate for the whole country on matters of national policy subject to safeguards in regard to devolved powers.45 The related issue of the constitutional status of Buddhism seems at least to be settled. Buddhism is the religion of 70.1 per cent of the population according to the census of 2012. Article 6 of the 1972 Constitution provided that the ‘Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18(1)(d)’. Article 9 of the 1978 Constitution used slightly different language obligating the state ‘to protect and foster the Buddha Sasana while assuring to all religions the rights granted by Articles 10 and 14(1)(e)’.46 The precise content of Article 9 is unclear. One commentator has argued that ‘[i]t would be possible, consistent with the other provisions of the Constitution, to create a hierarchy of constitutional values in which Article 9 serves as the supreme principle of constitutional jurisprudence—the animating force of substantive values inherent in the Constitution’.47 The Supreme Court, in a special determination regarding a private member’s bill titled Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation),48 held that the bill was inconsistent with Article 9. The thrust of the petitioner’s argument was that the Sisters’ charitable works was a means to convert vulnerable persons to the Catholic faith. No proof was advanced in support of this assertion. The Catholic Archbishop of Colombo, Malcolm Cardinal Ranjith, has said that he is comfortable with the special status accorded to Buddhism.49 The interim report of the Steering Committee of the Constitutional Assembly, which was submitted to Parliament on 21 September 2017, indicates cross-party agreement to retain the substance of Article 9.50 Collapse of consensus When the proponents of radical constitutional change lack power to dictate its course and outcome, change can only happen by consensus. Sri Lanka’s constitutional reform project commenced with the apparent goodwill of all of the political parties. It was backed strongly by civil society organizations. The public consultative process was both extensive and genuine as the reports show. Previously, the 19th Amendment that was designed to curtail the president’s untrammelled powers was passed by a near unanimous Parliament, with only one member out of 225 voting against it. Expectations that this consensus would drive the reform process, however, were dashed on the question of abolishing the executive presidency and returning to a parliamentary form of government. All of the parties were committed to this policy in the lead up to the elections of 2015. President Sirisena in office re-affirmed his intention to abolish the office at the end of his term.51 However, he and his party reversed their policy amidst reports that Sirisena intended to run for a second term. The new position is set out in the submission of the SLFP attached to the interim report of the Steering Committee: The SLFP is of the view that a complete abolition of the prevalent form of Executive Presidency would not be prudent. In considering the need to protect the unitary nature of the State especially in a context of devolving wide powers to the Provincial Councils, and the need to maintain the stability of the State in the face of terrorist and secessionists movements that are taking place in various parts of the world, the SLFP believes that a President with a certain amount of power should be elected directly by the people. Thereby, every ethnic group in the country gets the opportunity of exercising political power and of being stakeholders in the process of electing the President sans narrow nationalistic and religious ideologies, and hence it becomes a practical formula for national reconciliation. The President who is elected in such manner should be the Head of the Cabinet of Ministers, and it should be made mandatory to ensure that he is given ministerial portfolios relating to National Security, Tri-forces, and the Police.52 This is a self-serving and self-contradictory argument in our view. It is true that in the national electorate, which elects the president, every vote has equal value, a fact that enhances the influence of minorities in determining the outcome. A president is unlikely to be elected purely on Sinhala Buddhist majority votes. However, the proportional representation system gives minorities a greater voice in Parliament that will be further strengthened by the removal of the remaining powers of the president. Moreover, the executive power to preserve the unity and defence of the nation will not be lost but will be transferred to the more accountable parliamentary government. An executive coup The divergent strategic motives of the political parties and the personal interests of individuals in maintaining the status quo are clearly factors that are undermining the consensus necessary for constitution building. These factors were in evidence in the final rupture of the government coalition that ended the prospects of a new constitution during the current Parliament. A key change made by the 19th Amendment concerned the manner of appointing and removing the prime minister. The prime minister, once appointed, is removable during the life of the Parliament only if the Cabinet stands dissolved and that happens only if Parliament: (i) rejects the statement of government policy; (ii) rejects the appropriation bill; or (iii) passes a vote of no-confidence in the government.53 On 26 October 2018, Sirisena launched a brazen bid to reassert his lost power. He attempted to remove Prime Minister Wickremasinghe, who enjoyed the confidence of Parliament, and to appoint Rajapaksa, who did not. The expectation was that a sufficient number of members of parliament would defect to his side for Rajapaksa to demonstrate majority support of Parliament. It was not to be. Violence erupted on the floor of the Chamber when a confidence vote was taken.54 Since Rajapaksa’s ministry had no control over legislation and public finances, Sirisena sought to dissolve Parliament by proclamation, leaving Rajapaksa as the caretaker prime minister until new elections are held. This move again was in violation of the Constitution. The 19th Amendment denies the president the power to dissolve Parliament ‘until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour’.55 The command of the Constitution could not be clearer. On 13 December 2018, the Supreme Court unanimously annulled the proclamation. The Court of Appeal restrained the usurping ministry from functioning until Quo Warranto proceedings against them were concluded. On appeal, the Supreme Court refused to vacate that injunction. Rajapaksa ‘resigned’ from an office he had never held legally, and Wickremasinghe was reinstated as prime minister. The 19th Amendment withstood its first harsh test. The largest party in Parliament, the UNP, the main Tamil party, the Tamil National Alliance, other minor parties, and key civil society groups continue to demand the return to classic parliamentary democracy. The faction that is loyal to Rajapakse, which calls itself the Joint Opposition, also appears to support the change.56 The Joint Opposition’s eventual decision on this question will be critical to the fate of this constitutional reform whenever the reform process restarts. Future of constitutional reform in Sri Lanka Although the ambitious constitutional reform project that commenced in 2015 has floundered on the rocks of coalition disunity and presidential ambition, pressure will continue for changes to the present Constitution in the new parliamentary term constitutionally mandated to commence in 2020. There are two main reasons. First, the Tamil parties continue to press for further devolution of power to the provinces as part of a lasting constitutional settlement of the ethnic divisions. As previously noted, there is international pressure to reach such a settlement. Whichever party gains power will need to address this issue. Second, the pressure will intensify for the reform of the executive branch. The fiasco of the president’s attempt in October 2018 to change the ministry against the will of Parliament alarmed civil society and caused public outrage. The episode ended the coalition government with Prime Minister Wickremasinghe leading a UNP ministry, while the president remained in charge of defence forces, the police, and the intelligence services. The cohabitation that the quasi-Gaullist system demands in this situation never transpired with catastrophic consequences. The defence leadership failed to act on detailed and specific intelligence received about imminent terrorist attacks on churches and hotels on Easter Sunday (21 April 2019) by an Islamic State of Syria-affiliated Jihadist group. The casualty figures at the time of writing stand at 253 dead and over 500 wounded.57 The attacks happened as the president was overseas on private business and the prime minister was left without authority to handle the situation. This kind of dysfunction within the executive branch is less likely to happen under the US model of tripartite separation of powers, where the president has comprehensive executive power subject to law, or under the Westminster model where the prime minister and Cabinet are solely responsible to Parliament and the electorate for the governance of the nation. Future constitution builders will need to consider these alternatives. Lessons for the future The constituent body with competence to change the Constitution is the Parliament, which can act by a two-thirds majority with respect to changes that do not affect the referendum-protected provisions. The latter class of provisions can only be changed with the added approval of the people at a referendum. No constitutional change can happen without two-thirds parliamentary approval. The president has no role in the constituent process. The current system of proportional representation is unlikely to produce a two-third majority for any party. Therefore, the first lesson is that consensus building will be of the highest importance. This will require active and sincere dialogue and the collective elevation of the national interest above personal and sectarian considerations. There is much common ground among the major political parties. They are all on record as supporting greater devolution, the return to parliamentary democracy, and the reform of the electoral system along the lines of the MMP model. Nevertheless, the party leaders will need much skill and hard work to build the necessary cooperation. It is critical that all parties take equal ownership of the project. Political parties are loath to give their opponents credit for big successes. Only a sense of joint ownership can overcome this obstacle. This may be easier said than done. We may be naive to expect good sense and the public interest to prevail over hyper-partisanship. But we see no other way forward in the quest for meaningful constitutional reform. The second lesson is that consensus building is easier if the reform program is undertaken incrementally. Electoral reform is relatively uncontroversial and may be expeditiously implemented. The MMP system seems to offer a Pareto optimal solution to achieving constituency representation while retaining the proportionality principle. It benefits all parties without prejudice to any party. The abolition of the executive presidency has the historical support of all of the major parties. Civil society appears overwhelmingly to support the change. The president who recently reversed his policy on this question is unlikely to command significant representation in the next Parliament. The office of the president, though diminished, remains an attractive prize as the present incumbent’s recent conduct shows. Apart from being the head of the executive and commander in chief of the armed forces, the president enjoys many powers and privileges and the trappings of the office as head of state. As previously observed, the abolition of the office will relocate the executive powers of the president to the prime minister and the Cabinet. Hence, the argument that the current powers should remain with the president for the sake of the unity and safety of the nation, in our view, has no merit. This is not a difficult argument to make. Britain won two World Wars under a Cabinet government. India, a vast federation of 1.3 billion people threatened by nuclear armed neighbours and centrifugal pressures of regional politics, has thrived under a parliamentary system. The thorniest issues will be raised by the proposed further devolution of powers to the Provincial Councils. The most contentious demands of the Tamil parties relate to powers over policing and land management. Their other demand—the merger of the Northern and Eastern Provinces into a North Eastern Province—seems unrealistic given its rejection by the major parties. The resolution of this national question is best undertaken in stages that would allow confidence building. This requires negotiations between Tamil and other parties in good faith and common purpose. A good start would be the full implementation of the scheme of devolution in accordance with the letter and spirit of the 13th Amendment. The contentious land and police powers should be delegated subject to the overriding central government authority to act in the interest of the national economy and security. An independent national Police Commission to approve appointments and disciplinary actions concerning police personnel at the provincial level will also promote trust. Constitutionalism now The strengthening of constitutional government need not await a new Constitution. It can and should begin now. The Constitution of Sri Lanka, especially after the curtailment of presidential power by the 19th Amendment, is nowhere near the worst in the world. However, a constitution is only as good as the respect it commands on the part of the political establishment, the public services, and the general public. Unfortunately, while the formal Constitution has improved, the state of the constitutional government leaves much to be desired. Since 2015, there have been significant gains. Civil liberties have been strengthened. Media freedom has been restored. Elections are free and fair, and the judiciary has largely regained its stature as the most respected branch of government. The state of constitutional government, however, has suffered in other respects. A liberal democratic constitution, unsupported by a strong culture of legality and moral propriety, is fragile and vulnerable to authoritarian tendencies. Corruption, crime, nepotism, hyper-partisanship, and the neglect of merit in the public sector are factors that directly and indirectly erode the supporting fabric of constitutional government. Transparency International in its 2018 Corruption Perceptions Index, ranks Sri Lanka at 89 out of 180 countries surveyed. Its score has declined since 2015.58 Perceptions are not reality, but perceptions matter in shaping public trust in the institutions that sustain constitutional government. The Transparency International report also shows a strong correlation between positive perceptions, constitutionalism, and economic performance. The escalating illegal drug trade that prompted the president to propose the imposition of the death penalty on convicted drug dealers is part of the growing menace of organized crime. It is a symptom of the wider problem of declining law and order in the country. Political offices in a well-functioning democracy should attract talented and upright personnel. The government-owned Daily News reported that the current Parliament comprises more than 50 per cent of people who do not have a high school certificate, which is in a country that ranks high in literacy and numeracy.59 Educational qualifications for election have been abandoned in most liberal democracies, and their re-introduction is fraught as it is open to the objections of elitism and disenfranchisement. The scale of the problem, however, seems to be symptomatic of the deeper malaise affecting the polity. Sri Lankan parliamentarians also have many personal privileges that are often abused. Exempt from customs duties, they import super luxury vehicles that they sell at massive profit. There is no statutory code of conduct to restrain improper behaviour. We do not believe that all politicians in Sri Lanka are corrupt or incompetent but only observe that opportunities for corruption and rent seeking are natural attractors of unqualified self-serving aspirants to public office. The quality of political leadership required for constitutional government is further compromised in Sri Lanka by the undemocratic internal governance of political parties. The Westminster convention that requires a defeated leader of a party to allow a leadership ballot has not taken root in Sri Lanka. The dynastic tradition encourages sycophancy and patronage that denies the electorate real choices and prevents upward mobility of young talent. Efficient and impartial public administration, a sine qua non of constitutional government, has suffered from politicization under successive regimes. The restoration of the Public Service Commission in the 1978 Constitution and its enhanced independence and authority under the 19th Amendment has improved the prospects of a revival of professionalism and integrity in the public service. A continuing concern is the political exploitation of the bloated semi-autonomous state sector comprising statutory corporations managed by government-appointed boards. Many of these firms are dysfunctional and bankrupt but are sustained as major sources of political patronage and nepotism despite their enormous drain on the economy. Each of these areas of dysfunction can be addressed without further amendment of the Constitution. Tangible improvements in law and order, ministerial responsibility, administrative efficiency and fairness, service delivery, prosecution of wrong doers, civility of political discourse, and the reform of political parties are essential, in our view, to earn the trust of the people on which the success of a constitutional referendum depends. In any event, the superstructure that is the formal constitution will collapse without the supporting foundation of fair and efficient institutions. Hence, in building the constitutional edifice, the builders are well advised to first strengthen the foundation. Footnotes 1 Douglass North, Institutions, Institutional Change and Economic Performance (Cambridge University Press 1990) vii. 2 KM de Silva, A History of Sri Lanka (Vijitha Yapa Publications, 2016) 13. 3 ‘Growth of Population, 2012–2017’ accessed 20 January 2018. 4 Sri Lanka ranks 73rd in the 2016 Human Development Index of the United Nations Development Programme out of 188 countries surveyed, above countries such China, India, and South Africa. 5 ‘Sri Lanka Starts Count of Civil War Dead’ Al Jazeera (28 November 2013) accessed 20 January 2018. 6 Ceylon (Constitution) Order in Council accessed 10 October 2017. 7 [1965] AC 172. 8 Ibid 193–4. 9 Asanga Welikala, ‘Specialist in Omniscience? Nationalism, Constitutionalism and Sir Ivor Jennings’ engagement with Ceylon’ in H Kumarasingham (ed), Constitution Making in Asia: Decolonisation and State Building in the Aftermath of the British Empire (Routledge 2016) 129. 10 Constitution of Sri Lanka, art 70(1). Note that, in 2015, the 19th Amendment to the Constitution reduced this discretion to the final six months of the Parliament’s term. 11 Indo-Lanka Accord accessed 21 January 2018. 12 Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill, SC 7/87 (Spl) to SC 48/87 (Spl), SD no 1/87 and SD no 2/87 (22, 23, 26, 27, 28, 29, 30 October 1987). 13 Jayantha Wijesekera et al v Attorney-General, SC (FR) Application nos 243-245/2006. 14 Constitution of Sri Lanka, art 41(C). 15 B Fernando, The Tussle between the Executive President and Public Authorities of Sri Lanka (Asian Human Rights Commission 2005) accessed 14 April 2016. 16 Fixed-term Parliaments Act 2011, c 14, s 2. 17 Thomas Jefferson, ‘Letter from Thomas Jefferson to James Madison (Sept. 6, 1789)’ in Julian P Boyd (ed), The Papers of Thomas Jefferson (Princeton University Press 1958) 392. 18 Suri Ratnapala, ‘Failure of Quasi-Gaullist Presidentialism in Sri Lanka’ in A Welikala (ed), Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Centre for Policy Alternatives 2015) vol 2, 649–90. 19 PK Balachandran, ‘Ex-Sri Lankan Navy Chief Colombage Narrates How the US Helped Destroy LTTE Floating Armories’ Indian Express (10 February 2017) accessed 1 November 2017. 20 United Nations General Assembly, Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights, A/HRC/30/L29, 29 September 2015 accessed 25 July 2019. 21 Ibid. 22 See Judith Large, Push Back: Sri Lanka’s Dance with Global Governance (ZED Books 2016) 146. 23 Jason Stone, ‘Sri Lanka’s Postwar Descent’ (2014) 25(2) Journal of Democracy 146; Ruwan Wathukarage, ‘Independence of the Judiciary in Sri Lanka: An institutional Analysis of its Woes’ [2007] LAWSASIA Journal 186; Suri Ratnapala, ‘Decline and Fall of Sri Lanka’s Judiciary and Prospects for Resurrection’ in HP Lee and Marylin Pittard (eds), Asia Pacific Judiciaries (CUP 2018) 305; W Goodhard et al, Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights Crisis Group Asia, Report no 172 (International Crisis Group 2009) 10. 24 A brief history of this episode and other parliamentary probes against judges is found in Luwie Ganeshathasan, ‘A Legal Primer: The Impeachment of the Chief Justice in Sri Lanka’ in Centre for Policy Alternatives, Groundviews (1 October 2013) accessed 2 November 2017. 25 International Crisis Group, Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights, Crisis Group Asia Report no 172 (International Crisis Group 2009) 11. 26 See Regina v Bow Street Stipendiary Magistrate ex parte Pinochet Ugarte (No. 3), [1999] 2 WLR 827. 27 T Seneviratne, ‘Helping Hambantota: Lawyers Acquiesced When Ex-CJ Perverted Justice’, Sunday Times accessed 2 November 2017. A video of the apology appears on You Tube accessed 2 November 2017. 28 ‘Sri Lankan Supreme Court Orders New Presidential Elections’ World Socialist Web Site (30 August 2005) accessed 26 January 2018 29 Human Rights Institute, Justice in Retreat: A Report on the Independence of the Legal Profession and the Rule of Law in Sri Lanka (International Bar Association 2009) 33. 30 Ibid 32. 31 SC Reference no 3/2012; CA (Writ) Application no 358/2012. 32 G Robertson, Report on the Impeachment of Sri Lanka's Chief Justice (Asian Human Rights Commission 2013) paras 65-6. 33 ‘President Reveals Why He Removed Mohan Peiris’ Daily Mirror (17 February 2017) accessed 23 January 2019. 34 Interim Report of the Steering Committee, 21 September 2017 (Parliament of Sri Lanka 2017). 35 The reports are published on the website of the Constitutional Assembly accessed 22 January 2018. 36 accessed 22 January 2018. 37 ‘Banaranaike–Chelvanayakam Pact’ accessed 22 January 2018’ 38 JN Dixit, ‘Sri Lanka’ in JN Dixit (ed), External Affairs: Cross-Border Relations (Roli 2003) 47; Anne N dos Santos, Military Intervention and Secession in South Asia: The Cases of Bangladesh, Sri Lanka, Kashmir, and Punjab (Praeger Security International 2007) 53, 54. 39 Rajapaksa Committed to Devolution: Manmohan’ The Hindu (31 March 2010) accessed 22 January 2018. 40 Tissaranee Gunasekera, ‘Remember, Remember’ accessed 15 October 2017. 41 ‘UN Human Rights Chief Reiterates Demand for Extension of Universal Jurisdiction to Sri Lanka’ News in Asia (11 September 2017) accessed 30 October 2017. 42 Interim Report (n 34) 1–2. 43 Ibid. 44 Ibid 5. 45 Ibid 6–7. 46 The term Buddha Sasana encompasses everything related to the Buddha’s teaching, its propagation, its study, and its practice. 47 Larry Catá Backer, ‘Theocratic Constitutionalism: An Introduction to the New Global Legal Ordering’ (2009) 16 Indiana J Global Leg Stud 101, 178. For a survey of the treatment of Buddhism in other Asian constitutions, see D Lee, ‘Here There Be Dragons! Buddhist Constitutionalism in the Hidden Land of Bhutan’ (2014) 15 (1) Austr J Asian L 1. 48 SC Special Determination no 19/2003 accessed 11 March 2018. 49 ‘Archbishop Malcolm Cardinal Ranjith States Buddhism Should Be Given Priority’ Hiru News (28 July 2016 accessed 21 January 2018. 50 Interim Report (n 34) 2. 51 ‘Sirisena Pledges to Abolish Executive Presidency’ Colombo Telegraph (12 November 2015) accessed 11 March 2018. 52 Interim Report (n 34) 34–5. 53 Constitution of Sri Lanka, art 48(1), (2). 54 ‘Chaos in Sri Lanka Parliament as MPs Exchange Blows’ Aljazeera (15 November 2018) accessed 20 January 2019. 55 Constitution of Sri Lanka, art 70(1) proviso. 56 Interim Report (n 34) 76. 57 Jeffrey Gettleman, Dharisha Bastians and Hannah Beech,‘“We Knew What Was Coming”: Sri Lanka Sees ISIS’ Hand in Attacks’ New York Times (3 May 2019) accessed 4 May 2019. 58 Transparency International, Corruption Perceptions Index 2018 accessed 8 May 2019. 59 Irangika Range, ‘Parliament has 94 MPs without O/Ls’, Daily News 15 March 2017 accessed 25 July 2019. © The Author(s) (2019). Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - Sri Lanka’s Quest for a Reformed Constitution: Lessons from a Lost Opportunity JF - The Chinese Journal of Comparative Law DO - 10.1093/cjcl/cxz011 DA - 2019-09-01 UR - https://www.deepdyve.com/lp/oxford-university-press/sri-lanka-s-quest-for-a-reformed-constitution-lessons-from-a-lost-8SGqLWaUCb SP - 285 VL - 7 IS - 2 DP - DeepDyve ER -