Constitutional Reform for a Stable Sri Lanka

Constitutional reform has been a consistent demand of the citizens of Sri Lanka, most of whom firmly oppose an all-powerful president who is free of the checks and balances imposed by a strong parliament. Successive presidents have pledged to abolish the executive presidency only to renege on that promise once they were elected to power. However, since the presidential system was introduced by J.R. Jayewardene in 1978, it has consistently failed to deliver the political stability, economic prosperity and stable peace that the it was supposedly designed to produce.

According to a 2024 survey on Democracy and Reconciliation by the Centre for Policy Alternatives (CPA), three quarters of Sri Lankans believe that democracy is preferable to any other form of government. They have a moderate awareness of the ongoing constitutional reform process (42.9 percent) while a majority (52.3 percent) preferred a new constitution. This figure increased considerably from 2016 to 2024.

The nail in the coffin of support for the presidential system came in 2022 after two years of the authoritarian and corrupt rule of President Gotabaya Rajapaksa that drove the country to its knees and reduced it to bankruptcy. With the aragalaya, people learnt that they had the power and agency to dispose of leaders who broke their social contract and ruled in opposition to their wishes.

During his 2024 election campaign, President Anura Kumara Dissanayake pledged to abolish the executive presidency and appoint a president without executive powers by the parliament and to introduce a new constitution that strengthens democracy and ensures equality of all citizens.

“This initiative will build on the constitutional reform process started in 2015 which remains incomplete. The proposed constitutional reforms will guarantee equality and democracy and the devolution of political and administrative power to every local government, district and province so that all people can be involved in governance within one country,” he said.

But four months after winning a two thirds majority in parliament, the government has made little progress on the road to constitutional reform. As part of its series on Assessing the Key Issues Facing the NPP Government, Groundviews spoke to CPA Researcher Shahane De Silva on where the process stands, the need for getting rid of the executive presidency and the CPA’s proposals for the new constitution. 

Is there any progress with the NPP government on constitutional reform?

With regard to the NPP’s manifesto, there were a couple of promises that we haven’t seen progress on. First is the abolition of the executive presidency. There is also the promise of a new electoral system for parliament and a permanent bench of judges for streamlining cases of financial crimes and corruption. We haven’t seen any progress on those promises. In addition, with regard to national security, they did promise strengthening the National Security Council and also the establishment of a National Security Advisory Board. We haven’t seen any progress on that. The one promise that we have seen some progress on, or at least heard some progress of, is the establishment of an independent public prosecutor’s office.

The president, like his predecessors, promised in his election campaign to abolish the executive presidency. Do you believe he will do this?

In a majority of the presidential elections since the adoption of the 1978 constitution, the abolishing of the executive presidency has been a contested issue. It has been promised either by the winning candidate or by the winning candidate and the main losing candidate that usually represented close to half of the electorate. President Anura Kumara Dissanayake has been one of the most consistent promoters of the abolishing of the executive presidency so we can see that there is definitely a will to do so. However, generally successful constitutional reform processes will take place within the first six to nine months of the first sitting of parliament. Given the NPP’s parliamentary supermajority and the strong mandate they have for system change, it is possible for them to take a little longer. But if it gets too late and the government’s priorities have to turn towards things like the economy, particularly because Sri Lanka is in an IMF programme and debt payments resume in 2028, then the likelihood of them going through with these critical core constitutional reforms decreases dramatically. So it really depends on the timing and when they decide to really start on these constitutional reforms or when they start the constitutional reform process.

Why is abolishing the executive presidency the most important aspect of constitutional reform?

In 1978, when the executive presidency was adopted as the core feature of the new constitution, there were a few basic objectives that it had. One being communal harmony. The idea was that a president having to achieve 50 percent plus one vote of the presidential election in order to become president meant that they had to appeal to a cross-communal electorate in order to become the winning candidate. Now that has been decisively disproven. You can point to the 2010 and the 2019 presidential elections as very strong empirical cases disproving that where candidates have appealed to the largest ethnic communal majority in order to win the presidency and at the expense of the minorities. The other aspect and a narrative that’s still believed in portions of society is the idea that we need a strongman ruler for decisive economic action for rapid economic development. There’s a lot of cases disproving this idea as well. The lack of checks and balances on the presidency has resulted in a lot of incompetent and not really thought through policy decisions. If we take, for example, the economic crisis of 2022, some of the main catalysts were former president Gotabaya Rajapaksa’s decision to cut taxes in a big way in 2019. The chemical fertiliser ban was a massive impediment as well as was the very delayed stoppage of debt payments. These were all decisions that came from the presidency that were just not in keeping with what needed to be done at that time. No one could really stop it because there was no way to check the presidency so we need a new system where there is collaborative decision making and there are checks and balances on decision making in order to produce better thought out decisions.

Other than abolishing the executive presidency, what other constitutional reforms are necessary for a stable Sri Lanka?

The current composition of the Constitutional Council is that there are seven members of parliament and three persons of eminence from civil society, academia and other various sectors of society that are not politically affiliated. We need to de-politicise the Constitutional Council further, and that has a trickledown effect to the rest of the independent commissions in de-politicising them. We can, at the very least, go back to the composition it was in the 17th amendment where there were seven persons of eminence and only three members of parliament. We can actually do more to de-politicise it where the only member of the Constitutional Council that has some sort of political affiliation is the speaker of parliament and the rest are persons of eminence from across the other sectors of society. The other issue is the de-politicisation and the professionalisation of the public service for efficient public service delivery and also to reduce wastage, corruption and other negative traits that are associated with the public service. We also have the introduction of post-enactment judicial review that is incredibly important as well and of course a meaningful system of territorial devolution in order to convert it from this system of patronage, which is what currently is in practice, to one that actually is about empowering people at the provincial and local level and for their voices to be heard and to have government respond to their needs at those levels. Those are some of the broad reforms outside of the abolition of the executive presidency that we do need but there are a lot more.

Is the 13th amendment enough for meaningful devolution or should it be more extensive?

The current system of territorial devolution to the provinces has a lot of flaws. One of the biggest flaws is the provincial governor. The provincial governor is actually an agent of the president in that he or she is elected by the president and remains in the office at the pleasure of the president so can be dismissed at any time by the president. The provincial governor has vast powers over provincial administration. First he or she is the de facto provincial minister of finance. All provincial statutes that is the laws passed by the provincial council have to be assented to by the provincial governor and the provincial governor has powers over the provincial public service, meaning that the provincial public service isn’t independent. When you have an agent of the president who is the chief office at the central government level acting on the province through the provincial governor, that is antithetical to the principle of devolution and the vast majority of power isn’t actually held by the elected representatives of the province the people who have elected the provincial council and from there you have the provincial board of ministers, they are in a lot of ways hamstrung by the provincial governor.

CPA has already drawn up a draft constitution, can you outline the main proposals?

In broad brush strokes what we are proposing is the abolition of the executive presidency and we want to replace that system with a parliamentary form of democracy. The president becomes a ceremonial head of state but the prime minister is head of government and head of the cabinet of ministers and that cabinet of ministers is able to carry out their tasks as long as they maintain the confidence of parliament so that’s a check of the legislature on the executive throughout, which is not there currently. Parliament in our proposal is a bicameral legislature meaning that there are two houses; you have the lower house which is where all the elected representatives are composed of and you would also have a senate that is composed of expert representation. These are not politically affiliated individuals but people of eminence from different sectors of society. They are the expert representation over legislative bills and provincial representation coming from the provincial councils from all nine provinces. We would also have post enactment judicial review and we would have a three tier structure of government so we would have the national, provincial and local level constitutionally recognised. We would ensure that things that need to be dealt with at a certain level are dealt with by that level so local problems better dealt with at the local level by the local government and moving up until the national level. An enhanced Bill of Fundamental Rights. In broad brush strokes that is our proposal for constitutional reform.

Have you presented this version to the government?

No, we haven’t as of yet but we are more than happy to engage with the government provided they believe in carrying out constitutional reform the way we ought it should be done.

Constitutional Reform for a Stable Sri Lanka