Commentary: Sri Lanka’s Constitutional Crisis and the Threat to Its Democracy

In late October, Sri Lanka President Maithripala Sirisena made four decisions that have unleashed a constitutional crisis: He and his coalition withdrew from the national unity government, summarily fired Prime Minister Ranil Wickremesinghe, replaced him with former President Mahinda Rajapaksa, and discontinued Parliament until Nov. 16.

That last move was designed to give Rajapaksa and his allies the time to create a parliamentary majority by coercing and bribing members of the opposition to cross over. Recent reports claim opposition politicians are being offered up to $3 million to do so.

But no sooner had Rajapaksa been made prime minister than his supporters took over state-run newspapers and forced the two state-owned television stations off the air until they resumed broadcasting in a pro-Rajapaksa vein. Wickremesinghe’s website was promptly effaced and substituted with fawning pro-Rajapaksa content, even as Rajapaksa loyalists inundated social media with statements vilifying Wickremesinghe. Sirisena and Rajapaksa also sought to consolidate their hold on the state by swearing in new ministers and appointing new secretaries to ministries.

It appears Rajapaksa was made prime minister before Wickremesinghe learned of his fate. Wickremesinghe claims he commands a parliamentary majority and therefore cannot be replaced, and he has refused to leave the prime minister’s residence.

Prime ministers have been dismissed in the past, but only after the legislature was dissolved. The reverse has led to Sri Lanka seemingly having two prime ministers. The speed and secrecy President Sirisena resorted to when ousting Wickremesinghe violates parliamentary norms and constitutional rules and is what makes this appear as a power-grabbing constitutional coup.

Rajapaksa’s return in such a controversial fashion will inevitably be considered harmful to democracy in Sri Lanka, potentially reopening the deep divides in a nation still struggling to unify from years of civil war. Rajapaksa’s return to public office could also threaten to alter the regional balance of power, a development that would ripple across Asia and to the U.S.

The Opening for Rajapaksa’s Return

Rajapaksa was the island’s president from November 2005 to January 2015, and his popularity skyrocketed when the separatist Liberation Tigers of Tamil Eelam (LTTE) were defeated in 2009. But the LTTE’s defeat accompanied accusations of human rights violations and alleged war crimes.

Rajapaksa’s rule was authoritarian, corrupt, disregarded the rule of law and sought to create a political dynasty. The latter especially caused disgruntlement among senior members of Rajapaksa’s Sri Lanka Freedom Party (SLFP) and it influenced Sirisena, who was serving as a Cabinet minister in Rajapaksa’s government, to run against him as the common opposition candidate in the 2015 presidential election. His victory, with the help of civil society and Wickremesinghe’s United National Party, or UNP, was widely hailed as a win for democracy.

[MORE: The most corrupt countries, ranked by perception.]

Sirisena’s election led to a national coalition government. Rajapaksa, however, remained the most popular politician among the majority Sinhalese Buddhists, evidenced when a new party he formed dominated local council elections in February. Rajapaksa’s desire to recapture power is partly due to the fear that he and his family may be prosecuted for their alleged misdeeds, ranging from allegations of murder to stealing state funds. It is also born from his long-standing goal to ensure his eldest son becomes president of the country.

Rajapaksa’s determination to return to power received a boost when the Sirisena-Wickremesinghe relationship started to break down. The government’s unpopularity, due mainly to the rising cost of living — for which the president holds Wickremesinghe and his coterie responsible — especially contributed to the estrangement. So did Wickremesinghe’s desire for India to develop Colombo’s East Container Terminal, which mainly operates as a transshipment hub for Indian goods.

Dueling Constitutional Amendments

While in office, Rajapaksa engineered the 18 th Amendment, which allowed him to run for a third term. The Sirisena-Wickremesinghe government reimposed the two-term limit and also strengthened the powers of the prime minister vis-à-vis the president. The 19 th Amendment, through which they returned the two-term limit, also specified how the president could remove the prime minister. The current crisis stems from Sirisena not following the letter and spirit of the law in this regard.

Except for two occasions when prime ministers died while in office, governments in Sri Lanka have come to power via elections. Some elections were tarnished, but the electorate’s verdict was sufficiently robust to provide legitimacy. Sirisena’s actions defenestrate that legacy.

Due to the 19th Amendment, Rajapaksa cannot run again for president — unless the two-term limit is reversed by yet another constitutional amendment. But he can run for prime minister and knows that the new prime ministerial powers, coupled with Sirisena’s weak standing within the SLFP for having bolted the party to become the joint opposition candidate, will allow him to dominate the Cabinet and politics.

Rajapaksa Could Pose Test for Reconciliation

The presidential system that was introduced in 1978 led to somewhat illiberal governance, but no one used the powers of the presidency to neuter civil society, muzzle the press, silence and disappear critics, attack nongovernmental organizations and persecute the traumatized Tamils and loyal Muslim minorities with impunity as Rajapaksa did. The civil war helped mask this democratic regression, but Rajapaksa’s rule and his grasping family’s omnipresence throughout the state drastically compromised the island’s institutions, so much so that many believe a third term for Rajapaksa will most likely lead to full-blown authoritarianism.

[MORE: Ousted PM says U.S., Japan freeze aid over crisis.]

Rajapaksa’s return to power will also impact the transitional justice process Sri Lanka is engaged in. Both the Sri Lankan military and LTTE perpetrated war crimes, especially during the latter stages of the civil war, and the international community has consistently called for investigations into this. Rajapaksa, however, refused to put in place meaningful mechanisms geared toward reconciliation and accountability when he was president.

The military considers Rajapaksa an ally — reflected by his statements that he would go to the gallows before any military personnel were prosecuted. As prime minister he is bound to continue to toe this line, which in turn will fray relations with the West.

Rajapaksa is a Sinhalese Buddhist nationalist who subscribes to majoritarianism. Not only did he refuse to reconcile with the Tamils following the defeat of the LTTE, he tacitly supported Sinhalese Buddhist extremists attacking the island’s Muslims. It is with good reason that both Tamils and Muslims voted in droves to defeat Rajapaksa in 2015.

There is no reason to believe that such communalism will be stifled should Rajapaksa return to power. Such an atmosphere would not bode well for democracy in Sri Lanka.

Ripples Across Asia, to Europe and Washington

While in office, Rajapaksa steered a foreign policy that distanced Sri Lanka from India, the regional power. Instead, he steered relations toward China, which dispensed large loans, some at nonconcessionary rates, to construct many dubious infrastructure projects. Many are convinced that in granting such massive loans, China enticed Sri Lanka into a debt trap. The island’s inability to pay off the loans and interest recently forced it to lease out the Hambantota Port to the Chinese for 99 years as part of a debt-for-equity swap.

China has invested in the Colombo Port, which is the only port in South Asia that can accommodate the largest container ships, even as it builds the $1.4 billion Colombo Port City. Its capacity to use such investments, loans and maneuvers to create strategic depth — as, for instance, when it sent submarines to the Colombo Port when Rajapaksa was in power — caused widespread concern in New Delhi. Many believe the submarines were a major reason for the Indians working secretly with the island’s opposition to promote Sirisena’s candidacy in 2015.

It is now known that China secretly funded Rajapaksa’s 2015 presidential campaign, and Beijing’s ambassador was the only member of the diplomatic corps that met with Rajapaksa after Wickremesinghe was fired. All this suggests India. Japan and the West have reason to worry about the degree to which a new Rajapaksa regime may cozy up to China and thereby help alter the balance of power in the Indian Ocean and beyond.

India, which is home to over 60 million Tamils in the southern state of Tamil Nadu, also fears that Rajapaksa, given his Sinhala-leaning propensities as well as his political base among hard-line Sinhalese Buddhists, will again ignite hatred against the Sri Lankan Tamil minority. Such a turn could place New Delhi in an awkward situation: It would be caught between domestic misgivings about addressing Tamil concerns and external pressures to ward off renewed Chinese influence in Sri Lanka.

India is not the only state that will be wary of Rajapaksa’s return to power. The United States had watched with much dismay as Beijing made significant inroads into Sri Lanka under Rajapaksa. Unfortunately, while Washington increased its aid to the island, it did not offer large-scale loans that could have countered the monetary temptations of China. Given the Trump administration’s domestic preoccupations as well as its focus on other regions of the world, it is far from self-evident that it could forestall China from expanding its footprint once again in Sri Lanka.

The international community has called for this crisis to be resolved in line with the country’s constitution, even as the Wickremesinghe and Rajapaksa camps use the constitution to justify their positions. Many say the issue should be taken up by the Supreme Court, but doing so will take time and it is highly possible the court would rule that Parliament should deal with the issue. Despite a majority of parliamentarians demanding it be reconvened, Parliament remains discontinued. This suits Rajapaksa and his supporters because the more time they have to consolidate their takeover, the harder it becomes for Wickremesinghe to fight back.

Sri Lanka’s Parliament has 225 members and — at the time of this writing, factoring in defections — Wickremesinghe commands 103 members, and Rajapaksa commands 100. While some among the remaining 22 who belong to other parties may abstain when a vote of support is taken, most appear to lean toward Wickremesinghe. Given the amount of money being thrown at parliamentarians, this could change.

But whatever the outcome, Sri Lanka’s democracy has been irretrievably scarred.

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