• Int’l report observes the failure of justice-related legal institutions and processes, and the role of ethnocracy and authoritarianism in the context of public governance and rights  

Sri Lanka’s current crisis is an evolving and dynamic situation. Its political, economic, and social manifestations demonstrate the significance of legal institutions and processes in upholding the responsibilities of democratic governance and protecting the citizens rights. The crisis also holds lessons for other emerging markets and developing countries. The economy, transitional justice and democratic freedoms from a rule of law perspective should also receive attention.

Highlighting this, a recent report titled “Sri Lanka’s Evolving Crisis: Implications on the Rule of Law and Constitutional Democracy”, which was issued by the National University of Singapore’s Institute of South Asian Studies and Konrad-Adenauer Stiftung’s Rule of Law Programme Asia, explained that the next few years would be decisive to Sri Lanka as far as the rule of law, democracy, governance and human rights are concerned. Authored by Wini Fred Gurung, Divya Murali, Roshni Kapur, Rajni Gamage, and Chulanee Attayanake, the report analysed the country’s democratic institutions and processes, which it said have largely failed to prevent the prevailing economic and political crises. It further studied whether ethnocracy or authoritarianism is the root cause of the crisis, discussed the contestations over the legitimacy of the “aragalaya” (the people’s movement to overthrow the then Government under former President Gotabaya Rajapaksa), and explored the chances of overcoming the ongoing crisis towards instituting a more stable socio-economic climate.

A crisis prone country

Adding that Sri Lanka’s current crisis is a manifestation of larger political, social, economic and legislative issues that have been developing for a long period of time, the report said that the crisis that is continuing to evolve demonstrates the impact of the erosion of democracy and the legislative framework via multiple constitutional changes that led to power centralisation, and highlights the role of legal institutions in upholding the responsibilities of democratic governance and protecting the citizens’ rights. 

The report paid attention to the legal dimensions of the economic crisis, legislative reforms and transitional justice, and the State’s legal power and its impact on democratic freedoms. According to the report, the genesis of the current crisis in Sri Lanka can be attributed to a fundamental crisis in constitutionalism. It explained that the three different Constitutions and many Constitutional Amendments have resulted in both positive and negative impacts. While there was the progressive erosion of constitutionalism through the three Constitutions, it was explained that there was also a progressive establishment of constitutional majoritarianism through the constitutional establishment of a unitary State while elevating Sinhala as the sole official language (until 1987) and necessitating the State’s obligation to give the foremost place to Buddhism as well as to foster the Buddhist order or Buddha Sasana. It claimed that certain key Constitution related developments have resulted in weakened constitutionalism and a weakened democratic culture, thereby leading to a long term governance related crisis.

Another argument for the current crisis, as per the report is that the crisis is the outcome of institutional failures, be these economic or political. It added that the Constitution, the legal framework, and the more political administrative structures in the State reflect the emergence of underlying structures of power and specific interest groups since the 1980s. 

The report read: “The economic crisis is also closely linked to the role of ideology and stasis in political beliefs. As flawed and polarised as the Sri Lankan democracy has been since Independence, it still elects via the universal franchise. However, political leaders have increasingly relied on patronage rather than policy to appeal to the voters. A possible reason for this route can be attributed to the historical circumstances when Sri Lanka became a democracy, which coincided with the Great Depression, thus dis-incentivising the political leaders to have a pro market stance on the nation’s growth. From the late 1970s onwards, there was a shift in ideological beliefs that market led growth works best with low Government spending, low taxes and the shrinking of some of the State services, almost akin to the reactive embrace of neoliberalism in post-Soviet nations.”

According to the report, addressing the larger structural problem in the Sri Lankan crisis however, lies in the answer to the question of how the Parliamentary system can be re-democratised and how the debate on system change progresses.

With regard to legislative reforms and transitional justice in Sri Lanka, the report claimed that the prevailing crisis is deeply embedded in the state of its ethnic relations, and that after the war ended, nationalist politics continued to undermine the country’s reconciliation, peace and development related efforts. 

“The question of accountability was also raised on how the Government restricted the freedom to protest. Apart from this, the concentration of power within the Executive Presidency was criticised as detrimental to a healthy democracy. However, the struggle against the unjust and arbitrary exercise of power, and the demands for accountability have a much longer history than the context of the present crisis. They have been fundamental to the ethnic conflict,” it explained, adding that in order to understand the mass protests in Sri Lanka last year (2022) in relation to the ethnic question and transitional justice, it is important to note some developments like the country’s shrinking public sphere, the struggle for transitional justice in Sri Lanka and the Presidency and power sharing.

State legal power and the impact on democratic freedoms is also a matter which could be connected to the prevailing crisis in the country, regarding which the report said that in Sri Lanka, the rule of law has been practised in an unconventional manner as it emanated from the demands during Sri Lanka’s crisis, and that therefore, the crisis provides various insights into the rule of law, constitutionalism and constitutional democracy in the country.

The report added: “The desire to institute an ethnocracy has undermined meritocratic governance in Sri Lanka. It has also allowed the politicians to mask their corrupt rule by appealing to nationalist sentiments, thereby undermining the rule of law. Hence, a longstanding practice of poor governance stemming from ethnocracy has played a major role in the manifestation of the current crisis.”

A decisive next few years

Noting that Sri Lanka’s crisis provides insights into other emerging markets and developing countries as well, the report said: “Following the global pandemic and the Russia-Ukraine war, an increasing number of countries in the Global South are going through an external debt crisis, rising inflation and imminent political instability. Many are also characterised by centralised power, shrinking democratic space and weakened governing institutions. Amidst this climate, there is a risk of those countries facing a similar crisis to that of Sri Lanka. The Sri Lankan crisis has also raised questions about how the people engage with the State and the political legitimacy of the State as a whole. It also highlighted the need for a fundamental rethinking towards a new social and political imagination in the country, including rethinking the question of the minorities and the class question in the country. The protest movement has opened the room for a fundamental rethinking of the question of State power and the devolution of power as well as the State-society social contract.”

It added that in this context, the next few years will be crucial for the development of Sri Lanka, and that it will take some years for the country to overcome the economic crisis. During this period, the country could witness cycles of political and social change. It explained that there are concerns over Sri Lankans leaving the country in large numbers that could result in an erosion of the skilled labour force.

“With different governments coming into power and the country struggling to forge political and economic stability, constitutional changes might also occur. There could be a mechanism similar to the constituent assembly, established outside of the Parliament, which reaches every region and envisions a new constitutional order encompassing every section of the society. This constitutional reform will also have to include the ethnic question to determine the route for both politics and the economy in the country,” the report read, adding that this is important because a crisis brings inequality to the forefront and, in the case of Sri Lanka, inequality has been tremendously aggravated over the last few decades.

The report claimed that as Sri Lanka attempts to grapple with the recovery, there are two possibilities, i.e. progressive possibilities and regressive divergence. Although it looks unlikely that the country will return to how it was before the crisis in political or economic terms, as per the report, this period however, also creates room for new concepts and ideas to expedite the road to recovery. Activists and academics can play an important role by building a social movement around a new election, calling for the dissolution of the Parliament (as early as March, 2023), and encouraging a diverse group of people to contest, as per the report.

With regard to the abolishment of the Executive Presidency, it was said that a movement can be set up to build a public consensus around the idea of a referendum, seeking to remove the Executive body. However, this could be a challenge as the decision to call a referendum lies with the President, and therefore, an alternative could be to field a Presidential candidate who can address some of the issues unleashed by the “aragalaya” movement. In addition, there is also a need to look at the idea of accountability, and the concept must cover issues that predate the war and the end of the war, and also on accountability for economic crimes. In a context where the processes of dealing with the past have relied heavily on State led processes, which have not been successful, it was explained that the civil society must be proactive in this respect to employ forms of psychology, art, memorialisation, education, the teaching of inclusive histories and access to economic opportunities as part of a strategy to deal with the past.