Prof. Jayadeva Uyangoda
Today is the International Day of Parliamentarism
Parliament has been a theme of many political debates in Sri Lanka since the establishment of the country’s first modern parliament in 1947. The narrative of Sri Lanka’s parliament has been intertwined with the stories of modern democracy, changing constitutional architecture of the state and political agendas of different elite groups vying for state power. The chronicle of Sri Lanka’s parliament is also an account of the vicissitudes of the country’s post-independence politics.
The introduction of the principle of elections based on limited franchise in 1910 and then the universal adult franchise in 1931 were early turning points during the formative phase of parliamentary system in colonial Sri Lanka. What evolved during the period between 1910 and 1947 was a proto-parliamentary system in the sense that the legislature was still an institution of the colonial state, the voters were not politically free citizens, and there was no independent political community bearing political sovereignty. The State Council established in 1931 on the basis of universal adult franchise was the forerunner to the parliament proper inaugurated in 1947. The post-independence parliament functioned in its original form till 1972 without any major disruption. There were however arguments for its remaking through an agenda of decolonization so that the parliament could become an authentic symbol of national independence.
Since 1970, the nature, composition, role and powers of parliament have been subjected to alteration several times. Directions of such alterations shaped by ideological commitments of various power blocs, group interests of competing class alliances and political elites, personal ambitions of individual political leaders, and occasionally the popular expectations for better governance.
Sri Lanka’s parliamentary government was originally designed by framers of the Soulbury Constitution generally in line with the Westminster model with some minor deviations.
The British model of parliamentary government had three specific features. Firstly, it had a bi-cameral legislature, reflecting class divisions within the British society. The interests of the ordinary people were represented in one House and interests of the landed and wealthy elites in the other. Members of the first, appropriately named the House of Commons in accordance with the English class values, were elected directly by the voters, or the ‘people.’ Members of the other Chamber, the so-called ‘Upper House’ that had an equally apt name, the House of Lords, were not people’s representatives. They were not elected through popular vote either. The hereditary head of state – King/Queen – was an institution of parliament symbolizing the monarchy which was never abolished in the process of Britain’s long democratic revolution. Thirdly, the political executive, or the Cabinet of Ministers, was part of the legislature in the sense that its members were also members of parliament, and they were collectively accountable to parliament.
Following that model, Sri Lanka’s parliament too consisted of a bi-cameral, or two-chamber, legislature as well as the British monarch. In the Sri Lankan version of parliament, the two chambers were re-named as the Senate and the House of Representatives. Naming the second chamber as ‘Senate’ was not in line with the Westminster tradition. Rather, it was a legacy of Roman republicanism. However, that has never been a point of controversy among Sri Lanka’s constitutional experts.
Meanwhile, Sri Lanka’s parliament had one major deviation from the British parliamentary model. The Soulbury Constitution had imposed limitations on the legislative sovereignty of Sri Lanka’s parliament.
Two major issues of controversy soon arose surrounding Sri Lanka’s first parliament. The first was the question whether parliament, with limitations on the scope of its legislative powers under the minority protection clause of 29 (2), had really embodied people’s expectations for full political independence from colonial rule. The question at the core of this controversy was the following: If parliament was not conferred with full and sovereign legislative power, could the ‘nation’ be viewed as really free, fully independent? The second was the ethnic majoritarian turn which Sri Lanka’s parliament took no sooner than the country received political independence.
Those who spearheaded the debate on the first theme were Sri Lanka’s Left parties and the Sinhalese nationalists. Both sides, although with different political agendas, shared the position that in the absence of a parliament with sovereign legislative powers, political independence of 1948 was incomplete. While the Sinhalese nationalist forces argued for the replacement of Section 29 (2) with a new clause removing the legislative limitation on parliament, they also advanced a novel idea that Sri Lanka should be made a republic within the British Commonwealth. This was a key recommendation of the Buddhist Inquiry Commission Report of 1953.
Meanwhile, the Left proposal for a republic had echoed both French and socialist republican notions of freedom of the political community. It also had a legal justification, elaborated by Lanka Sama Samaja Party’s (LSSP’s) Dr. Colvin R de Silva. Since a legal revolution was required to alter or rescind Section 29 (2), making Ceylon a republic through a popular mandate for a constituent assembly was the only option available. The example of Irish Republic of 1921 was perhaps in the back of Dr. de Silva’s mind.
Meanwhile, the nationalist and socialist parties – SLFP, LSSP and CP – got their much awaited opportunity to create a fully sovereign parliament and a republic. That was in 1970 when their United Front coalition of the SLFP, LSSP and CP received a two-thirds majority seats in parliament. However, as we will see later, a ruling party securing a two-thirds majority in parliament has always been quite harmful to the health and well-being of Sri Lanka’s parliamentary democracy.
The majoritarian turn which Sri Lanka’s parliament took at its very inception reflected an inevitable fate of modern parliamentary democracy in ethnically plural societies. As Arendt Lijphart, an American political scientist noted in his comparative research on democracy in parliamentary systems, has shown, the principle of majority rule had an inherent weakness. It enabled a numerically strong ethnic group in plural, multi-ethnic societies to transform not only the legislature, but also the entire system of democratic government, into an instrument to serve the interests of the ethnic majority at the expense of the minorities. Tightly built into the structures of electoral and parliamentary politics, ethnic majoritarianism is a specific type of democratic deviation of which Sri Lanka continues to be an example.
The enactment by post-independence parliament of the citizenship and franchise reform laws in 1949, within just one year of independence, marked the beginning of an irreversible process. It pushed Sri Lanka’s parliamentary democracy into a trap of ethnic majoritarianism and ethnic bargaining of the zero-sum type. The makers of the official language legislation of 1956 and the First Republican Constitution of 1972, the Sri Lanka Freedom Party and its socialist allies of different hues. faithfully followed the ethnic-majoritarian footsteps of their senior political rivals in the United National Party, with greater conviction and determination. Only the eloquent speeches delivered in parliament by opposition MPs on both occasions, not the legislative enactments themselves, that still remain as testimony to the vibrance of Sri Lanka’s parliamentary democracy in moments of grave setbacks.
Republican recasting of Parliament
Re-making of Sri Lanka’s parliament in line with the principles of republicanism in 1972 marked a major turning point in the evolution of Sri Lanka’s parliamentary democracy. It brought to an effective end the presence of Westminster parliamentary model in Sri Lanka’s constitutional practice. At the same time, the damage which the First Republican Constitution did to Sri Lanka’s parliamentary democracy is second only to what the Second Republican Constitution was to make a few years later in 1978.
If we take any new Constitutions as embodiment of projects of power forged by elites with specific political and ideological agendas, the 1972 and 1978 constitutions were championed by two elite groups who shared a thoroughgoing skepticism, for different reasons, about the utility of liberal parliamentary democracy to advance their political interests.
In 1972, the United Front coalition of socialists and Sinhalese nationalists found an opportunity to drive Sri Lanka decisively away from the old style parliamentary democracy that had been designed in line with the late seventeenth century Lockean principles of liberal, minimum government. It was also an opportunity for them to put into practice ideas that had been crystalized in their polemical attacks on the Soulbury constitutional model. Constitutionalizing ‘Popular Sovereignty’ was the foremost political and ideological goal of the socialist and nationalist makers of the 1972 constitution. They proclaimed Sri Lanka to be a Sovereign Republic and made a hybrid constitution mixing features of parliamentary democracy with that of a Socialist Republic. The single-chamber House of Representatives was re-named as ‘National State Assembly’, a name that reminded one the name of the French Parliament after the Revolution of 1789, ‘National Assembly’. It gestured to the commitment of some influential framers of the 1972 constitution to move away from the English Westminster Parliamentary model and embrace the French Republican parliamentary model along with some features of socialist constitutionalism.
In 1972, there was also a peculiarly instrumentalist approach to the meaning, purpose and functions of parliament as a key state institution. It was more a socialist republican parliament than a liberal democratic one. The constitution declared, in words borrowed from the socialist political vocabulary, that the National State Assembly (NSA) was to be “the supreme instrument of state power in the Republic.” Thus, the NSA was also the institutional embodiment of people’s sovereignty and thus exercised the legislative, executive and judicial powers of the people. Unlike in the case of Soulbury parliament, the republican parliament’s legislative power was declared “supreme.” No authority, institution or person, including the judiciary, had the power or jurisdiction “to inquire into, pronounce upon, or in any manner call into question the validity of any law” passed by the NSA. This clause was clearly a slap on the face of those who drafted the Soulbury constitution and allowed implicitly the principle of judicial review of legislation, a facility earlier used by Tamil minority citizens to challenge discriminatory legislation passed by the previous parliament. With its legislative supremacy firmly established, the NSA still lacked any measure of institutional autonomy; it was an ‘instrument’ in the hands of the political leadership of the regime, an influential section of which saw parliament as the key state institution to be utilized as a facilitator of socialist transformation. In other words, parliament was given so much power and authority by the 1972 constitution not to empower the citizens who elect its members, but the regime and its elites that controlled parliament for their own ends.
Thus, the way in which socialist constitutional thought, along with French Republicanism, had inspired the specific illiberal features of Sri Lanka’s parliament under the First Republican Constitution of 1972 warrants some acknowledgement, although belatedly.
The Second Republican Constitution of 1978 continued to re-create this model of illiberal Republican parliament with added features that gave the constitution ’s republican framework a few de Gaulle style autocratic features as well. Mr. J. R. Jayewardene and his reputed legal team made the parliament powerless and utterly subservient to the ‘leader’, who was to become the unelected President of a republic as the head of the executive. To emphasize the supremacy of the executive over the legislature and the latter’s devalued status, J. R. Jayewardene, its architect, introduced to the world his new constitutional scheme as ‘an executive presidential system.’ Moving decisively away from the Westminster model of parliamentary-cabinet government that had an implicit framework of separation of powers, the 1978 constitution brought both parliament and the cabinet under total domination exercised by one individual, the President who was simultaneously the head of state, head of government, head of the cabinet and also head of the ruling party. The political and constitutional change of 1978 marked the culmination of a process of the rise of the executive branch of Sri Lankan state over the legislature that began in 1972. Subordination of parliament to the executive headed by individuals with authoritarian-autocratic agendas has been the key general feature of new template of executive-legislature relations as defined by the 1978 Constitution, except during 2015-2019 when the 19th Amendment restored the powers of parliament vis a vis the executive.
The blow that Sri Lanka’s parliamentary democracy received in 1978 has been so debilitating that several attempts to restore Parliament-centric Cabinet government through constitutional reform have failed. In fact, when there was mounting criticism of the presidential system with arguments for its total abolition, one option brought to the table was returning to the pre-1972 parliamentary system with some adjustments. The first occasion when an electoral promise for returning to parliamentary government was made in 1994 by the People’s Alliance (PA), consisting of the SLFP, LSSP and CP. However, in the absence of a consensus between the PA government and the opposition UNP to ensure the passage of new reform proposals in parliament with a two-thirds majority support, Sri Lanka’s presidential system could easily survive during 1995-2001.
During the subsequent years, particularly after 2005, the Presidential system could find its most ardent defenders and beneficiaries from among its harshest critics of yesteryear, the SLFP and Left leadership. Interestingly the presidential rule of President Mahinda Rajapaksa from 2005 to 2014 also led to a vigorous renewal of the argument among the oppositionist forces for returning to parliamentary – cabinet government, with a President reduced to the status of a ceremonial Head of State with no executive powers. Ironically, it became the UNP’s turn now to spearhead the new campaign for the abolition or reforming the presidential system within a framework of parliamentary government. Tired of a presidential system marked by autocratic style of governance, abuse of power with impunity, contempt for checks and balances and the rule of law, relentless greed for personalized political power, and normalization of repression, public opinion once again turned in favour of abolishing the Presidential system.
A fresh coalescing of various reform constituencies eventually contributed to the emergence of a broad new coalition, bringing together the UNP and a breakaway group from the SLFP and civil society groups, to win the Presidential election in January 2015. However, political elites within the new yahapalanaya (‘Good Governance’) regime could not reach a consensus on the proposal for abolishing the presidential system altogether. While one faction pressed for the restoration of parliamentary-cabinet model of government, the other faction made a case for the retention of the presidency, with reduced powers. The latter’s key argument was that parliamentary-cabinet government headed by a prime minister would not guarantee either political stability or a strong leadership to ensure national security while functioning as the symbol of national sovereignty.
This defence of the presidential system, advanced by one strand of thought within the yahapalanaya coalition, also had an implicit critique of the pure model of parliamentary democracy. According to this critique. parliamentary democracy would produce only inherently weak governments. Faced with the prospects of minority ethnic insurgencies and terrorist threats, Sri Lanka’s national security interests require political stability under a president with executive powers, who would not depend on parliamentary support for political survival. The eventual compromise between the parliamentarist and presidentialist approaches to constitutional reform in 2015 was the 19th Amendment. It produced a hybrid parliamentary-presidential government, with a new balance of power favouring parliament., If permitted to operate after 2019, reformist provisions of the 19th Amendment would have contributed to further consolidation of the parliamentary-cabinet government.
Parliament after 20th Amendment
However, the year 2019 saw the renewal of the argument for a quick and complete restoration of the executive presidential system. The activation of Islamic militancy highlighting the urgency of national security preparedness and the emergence of a presidential hopeful with a personal ambition to become Sri Lanka’s all-powerful leader of destiny were the two major factors that once again put to halt the consolidation of parliamentary democracy in Sri Lanka. Gotabaya Rajapaksa, Sri Lanka’s new President, brought back, through the 20th Amendment to the Constitution, the original ‘executive presidential system’ designed by Mr. J. R. Jayewardene nearly fifty years ago. Rajapaksa and his party, Sri Lanka Podujana Peramuna (SLPP), totally ignored the rich political debate that had subjected the presidential system to critical scrutiny and evaluation. He even demonstrated his antipathy to the autonomy of parliament as guaranteed by the 19th Amendment when he began to rule the country ignoring parliament, particularly its powers of law making and controlling the executive, and financial control. The period of covid pandemic, beginning March 2020, was one in which the constitutional role of Parliament was ignored by the executive. That is also the period during which Sri Lanka entered a new phase of executive authoritarianism. One defining feature of executive authoritarianism in Sri Lanka since 1978 has been the devaluation and marginalization of parliament as an institution of government.
As Sri Lanka’s experience since 1978 shows, the rise of presidentialism has been also a story of rapid decline of parliamentary democracy. Sri Lanka’s presidentialism has a template that has a dual approach to parliament. The first is the taming of the parliament, making it ineffective, incapable of self – assertion and wholly subservient to the head of the executive branch of the state. The second is making the parliament superficially strong with a two-thirds majority for the ruling party to which the President belongs, and simultaneously turning it into an instrument of presidential rule. Thus, the two-thirds parliamentary majority for the ruling party in Sri Lanka’s presidential system of government is in practice a bane for parliamentary democracy.
As Sri Lanka’s past and current experience shows, governments with two-thirds majority have always undermined parliamentary democracy and pushed the country’s politics and the constitution into illiberal, authoritarian and autocratic transformations. Ambitious politicians with personal agendas have used their two-thirds parliamentary majorities to coerce the parliament to abdicate its powers, duties and responsibilities in order to serve egoistic political goals of ambitious of leaders who think of themselves as men of destiny. Legislative power of parliament has been repeatedly abused by such rulers obsessed with executive power to undermine the parliament’s role as the main institutional agency of popular sovereignty and democracy.
Meanwhile, parliamentary democracy has survived only under governments with unstable parliamentary majorities. However, reformist governments with unstable majorities cannot restore parliamentary democracy through constitutional reform. This in turn gives rise to a paradox which is very difficult to resolve: restoration of parliamentary democracy in Sri Lanka requires the commitment of a new reformist political force, capable of securing a two-thirds parliamentary majority as well as the office of the President. It also requires a sustainable coalition of both the executive and legislative branches of the state. The head of the executive in such a coalition should be prepared to abdicate the huge range of powers and privileges attached to his/her position for the larger good of the people. Amidst such formidable obstacles, the restoration of Sri Lanka’s parliamentary democracy seems to require a new type of legal revolution.