Democratic Decay: Examining Sri Lanka

under the Rajapaksa Government

Featured image from the Sunday Leader

DINITHI DE ALWIS- 07/30/2018

The phenomenon of democratic decay has gained attention around the world
by various different academics, especially in light of countries such as Poland,
Hungary and the United States. Scholars such as Tom Daly, have understood
‘democratic decay’ as an overarching umbrella term for the general decline in
the quality of democracy of younger and long-established democracies, which
do not qualify as full democratic breakdowns. I believe that this framework is
an important way to analyse how post-war, Rajapaksa executed a hybrid-
playbook narrative, consisting of both legal changes and explicit
manipulations of practice to deliberately undermine democratic institutions.
This particular time frame illuminates how in comparison to any other period
in Sri Lanka, the Rajapaksa regime, exacerbated decay.
In terms of the existing literature on democratic decay, very little is written on
Sri Lanka. In fact, there is a general lack of research regarding democracy in
Sri Lanka. Although Sri Lanka is not explicitly mentioned, its democratic
decline can be understood through the rubrics of ‘abusive constitutionalism’
provided by David Landau and ‘autocratic legalism’ proposed by Kim Lane
Scheppele.
Landau theorises the use of formal constitutional tools to undermine
democracy by drawing on examples which can be analogised to Sri Lanka,
such as Colombia where amendments regarding Presidential terms has
undermined democratic order. Similarly, the same parallels can be drawn to
Kim Scheppele’s understanding of new autocrats attacking democratic
constitutionalism to consolidate power and entrench themselves for longer.
Scheppele uses Hungary as an example to demonstrate how government’s
employ a ‘masterplan’ process to erode democracy and centralise executive
power. While scholarship has provided limited exposure to Sri Lanka, the
Rajapaksa government, at least generally emulates this ‘master plan’ trend
and the unique hybrid nature of it, even more so warrants the need for
further examination.
What was Rajapaksa’s master plan?
A Constitutional Coup
Rajapaksa’s first major post-war maneuver was the 18th amendment to the
Constitution. The amendment was incorporated in September 2010 and
terminated the two-term limit for presidents. It also replaced the
17th amendment by abolishing the Constitutional Council which was
responsible for alienating the public services and the police from political
interference and ensured that key appointments were made on a merit basis
rather than a political one.
The entire process as to how this occurred reflects deliberate actions to ensure
the significant failure of actors that ordinarily play a crucial role in protecting
the Constitution.
Firstly, the urgent bill process, which is used in time of pressing national
interest matters was exploited in order to get the amendment passed as
quickly and as secretively as possible. In reality, the amendment’s contents
did not even remotely relate to national interest, constituting a purposeful
manipulation of Constitutional process. It ensured that the public virtually
had no opportunity to consider the amendment and that the courts and
intervening petitioners had extremely limited time frames to argue and
consider the merits of an amendment which was going to completely change
the exercise of executive power. In many ways, the judiciary was pressured
into a decision before they even got the opportunity to decide. Any checks and
balances that could have penetrated the amendment, were purposely blocked
and therefore, depriving the country of the safeguards that should have been
activated in a democracy.
The two-term limit was vital to Sri Lanka’s democratic governance as it acted
as a check on the concentration of executive power and avoided promoting an
authoritarian type rule of democracy, which Rajapaksa was threatening to
follow. The removal of this check, meant that the president could continue for
an unlimited number of terms and essentially granting the president a form of
enduring immunity in office, in addition to the immunity from criminal and
civil proceedings, if they continue getting re-elected for life
At that point in time, Rajapaksa was seeking a third term in office. Unlimited
term limits provide unfettered power to the executive and simultaneously,
weaken the branches of the judiciary and the legislature to control and
prevent abuse of power. Conceptions such as the separation of powers are
made redundant, when one branch has overriding power and diminishes the
capacity of the other branches to function.
Furthermore, the demolition of this Constitutional Council meant that the
President had unfettered power to appoint key public officers, including the
Attorney General and the judges of the Court of Appeal and the Supreme
Court. This is particularly alarming, as it gives the executive supreme control
over the entire legal system, and undermines a citizen’s ability to seek redress
through these legal mechanisms. It also enables the president to directly
appoint members of commissions such as the Public Services commission,
Human Rights Commission and the Commissions in charge of Investigating
Allegations of Bribery and Corruption (CIABOC).
Hand in hand not only do the two parts of the amendment dilute checks on the
executive’s power, it gives virtually unchecked power to the executive. The
constitutional amendment was a clear tool to help Rajapaksa construct a more
authoritarian, significantly less democratic order. On one hand, we have a
strong President who is trying to latch onto power indefinitely. And on the
other, a President who has erased mechanisms of accountability so institutions
like the courts, and the Attorney General, rather than serving as independent
checks on his power, are now actively working on behalf of him. Additionally,
the Supreme Court’s reasoning for upholding this amendment endorsed it as
being inherently democratic. It was argued that it widened the people’s choice
to vote and that they were no longer ‘restricted by the law’ as to who they
wanted to the lead the country.
Thus, we have a regime that seems democratic, where formal procedure is
followed and Courts are given an opportunity to oversee amendments, where
people can still vote, and elections are held. But at the same time, its
underlying system is not democratic. This makes it difficult for people to
discern that the law is no longer being ordinarily operated by the government
but rather, is used as a weapon to invert democracy and remove key organs
that serve as defense mechanism for democracy.
Impeachment of Chief Justice
The second part of Rajapaksa’s playbook narrative was the impeachment of
the first female Chief Justice, Shirani Bandaranayake in January 2013.
Although Sri Lanka’s judiciary was still a fairly questionable protection
against executive overreach, the impeachment involved a dramatic set of
events which stripped the judiciary of almost all its independence. In 2011
tensions between the Chief Justice and the executive reached its pinnacle
when Bandaranayake ruled that the Government’s desire to create
a Divinegume (improving lives) required referral to the Provincial Councils
for their assent. This thereby ignited a campaign vilifying the Chief Justice,
claiming that by upholding the thirteenth amendment, she was encouraging
separatism, and was attempting to undermine political power to Provincial
Councils. Underpinning all this, was a regime threatened by any organ which
dilutes its power and any part of the Constitution which can validate this
dilution. On November 2012, members of the Governing United People’s
Freedom Alliance (UPFA) provided the Speaker with a resolution accusing
the Chief Justice of fourteen allegations of alleged misconduct signed by 177
members of Parliament. According to some accounts, ministers affirmed the
impeachment despite being deprived of a chance to actually read the
allegations that were made against Bandaranayake.
On the 13th of January, Rajapaksa delivered a proclamation removing
Bandaranayake from office. Two days later, Mohan Peiris, former Attorney
General and at the time, a legal advisor to the Cabinet and to the Rajapaksa
family, was sworn in as Chief Justice. Promoting such people to the higher
courts, deliberately ensured that the judiciary harboured an ‘executive
mindset.’ It demonstrated Rajapaksa’s desire to elect someone who would
beckon to the power of the president, rather than question it.
This impeachment crisis further prolonged the trend towards unfettered and
irregular exercise of executive power without any regard for due process, the
judiciary and the Constitution. The independence of the judiciary was
fundamentally undermined and its ability to act as a check on the executive
and legislative branches were eradicated. In fact, the nature of which
Parliamentary debate and voting for the impeachment motion occurred
proved that like the judiciary, the legislature was also servile to the executive
and ceased to act as a check on the executive. As Scheppele articulates, the
rules of the game were no longer separated from the game, constitutional
structures were captured on Rajapaksa’s playing field. He removed the
judiciary’s check on his power and consolidated a significantly less
democratic, authoritarian regime. These events illustrated Rajapaksa’s
purposeful plan to abdicate institutional prerequisites of a democracy which
exist as a counter to executive overreach. The impeachment of the Chief
Justice completed the Constitutional Coup which had begun with the
18th amendment.
Nepotism
The second portion of the hybrid-playbook includes Rajapaksa’s more explicit
actions to hollow out democratic institutions. Although these tactics are less
legalistic and procedural, the first part of the narrative very much
strengthened and bolstered the force of them. A significant tactic that
underpinned Rajapaksa’s reign was the centralisation of power through
dynastic rule. Rajapaksa offered lucrative government positions to his family
members, both immediate and distant to erode the checks on his power and to
ensure that he faced minimal dissent. Basil, Gotabaya and Namal Rajapaksa
are just a few of the household family figures who arrogated power during
this reign. Hence, encircled by his family Rajapaksa opened opportunities for
corruption, abuse of power and bribery. For instance, the judiciary and the
press were intimidated to act in ways that didn’t benefit the Rajapaksa family
and therefore, were forced to be servile to their power.
Although nepotism has not widely been written about in the democratic decay
framework, arrogating power in this way has an insidious effect on
democracy. Such personalised governance allowed Rajapaksa to firstly
concentrate power in the hands of his family, and then monopolise and
entrench his own presidential power and to use it in the way he desired, with
minimal resistance and transparency. The domination of this patronage
system was also a large reason why there was little opposition in Parliament to
the 18th amendment. The manipulation of practice already in place, acted as
the facilitating framework to allow the passing of the amendment in
parliament. In reverse, manipulations of practice are then given backing by
the constitutional or legal methods to safeguard their existence and vitality.
The master-plan is therefore, all encompassing. Hence, it is clear that single
parts of Rajapaksa’s playbook are strengthened when they are executed
together as they open greater opportunities to further weaken democracy. It
ensured that the appearance of democracy was seen to be upheld as different
portfolios and roles existed and were fulfilled, however in reality, they were
occupied by people that were constantly bolstering and protecting
Rajapaksa’s power. In this way, Rajapaksa could use the superficial
appearance of democracy and the backing of the electorate to minimise
challenges to his rule and remove important accountability mechanisms of a
democratic state.
Election Malpractice
Various hampering techniques executed under the Rajapaksa regime during
the 2010 election constituted a deliberate weakening of democracy. Ironically,
the concept of elections, irrespective of how they actually occur, is what
Rajapaksa often retreats to, to justify his regime as inherently democratic.
This rhetoric proclaims that regardless of what the regime produces, it is
ultimately ‘what the people wanted,’ and therefore has the validity of
‘electoral backing.’ However, obvious tactics of malpractice that occurred
during the 2010 election, illustrated that the mere existence of elections
doesn’t shield from the reality that democracy can operate illiberally and be
rapidly decayed.
The type of voting and elections that were taking place at the time,
deliberately undermined democracy rather than strengthening it. The way
that the Rajapaksa regime resorted to the idea that elections equate to
democracy, despite the violent and corrupt way in which they occurred, is in
itself a common technique employed by leaders. Rajapaksa blended
quintessentially democratic concepts with authoritarianism to establish
validity in his rule. He used electoral victories to legitimise the hybrid mix of
manipulations of practice and the legal reforms that were detailed in the
beginning of the playbook. However, while the opportunity to vote provides
the appearance of democracy, the illiberal way in which it operates to allow
Rajapaksa to entrench his power, hollows out its democratic content.
Freedom of the Press: Intimidation of Media Personnel
A common technique of governance that constitutes the final part of
Rajapaksa’s playbook was the intimidation of the media and the substantial
lessening of press freedom. In particular, the Constitution and the
surrounding legal framework in this area, was weaponised to not only heavily
regulate the media, but also to threaten and attack media personnel. During
the 2010 election, Rajapaksa banned numerous electronic media organisations
and there have been many attacks on media officers and personnel who were
critical of the Rajapaksa regime. Additionally, Rajapaksa used the media to
promulgate propaganda that attacked his opponents. To achieve this, he
openly infiltrated the press and employed public utilities such as print and
electronic media, radio and television to both silence the opposition, and
continue to condemn them. In its report, the Lessons Learnt and
Reconciliation Commission expressed their deep concern regarding attacks
and obstacles placed on journalists and that there was no priority given to
investigation, prosecution and of disposal of such incidents.
In August 2009, JS Tissaniyagam a journalist who had questioned the
government’s military campaign in his writing, was the first journalist to be
prosecuted under the Prevention of Terrorism Act (1979). He was sentenced to
twenty years hard labour. Furthermore, journalists have also gone missing
and been murdered during Rajapaksa’s presidency. Among these, was the
high-profile assassination of Sunday leader journalist, Lasantha
Wickrematunge. Lasantha was a well-known anti-establishment editor who
was killed while driving to work in January 2009. Up until his death, the
government often referred to him as living evidence that freedom of the press
existed. However, his brutal death became a terrifying symbol for Sri Lanka’s
fatal lack of freedom in the media.
In addition, the draconian Prevention of Terrorism Act (1978) and
Emergency regulations, which allow a complete ban on publishing news about
certain matters for protection, were also integral to Rajapaksa’s undermining
of the media.
Through this rule over the media, Rajapaksa attacked and eroded a vital
organ of democracy, with both bloodshed and the law. With his immense
power, Rajapaksa manages to carefully preserve the overall appearance of
democracy, while still killing its core. Rather than democracy being an
outright casualty, the exterior of democracy survives, illustrating that this is a
narrative of deliberate decay.
Why should we be discussing this today?
While currently there is lack of scholarship in this area, it is imperative that
scrutiny into these actions are further researched as the ramifications from
such a rule can be extremely difficult to mend and in some cases, may be
deadly. Further illumination into this insidious treatment of democracy is
urgent as without the traditional defense mechanisms of a democracy, the
people of Sri Lanka are left extremely powerless. Most fundamentally, the
way this playbook operated substantiates why there is inherent value in
applying ‘democratic decay’ to the Rajapaksa regime. This is because the way
he acted was never to abolish democracy and cause a complete breakdown in
democracy. He attempted to always provide the illusion of democracy, while
cloaking what was deeply illiberal and undemocratic. Rajapaksa could always
point to a simplistic democracy, where elections were held, a Constitution and
a court hierarchy existed and judges were elected, however, what was not so
easily discerned, was that Rajapaksa was exploiting the law and the post-war
climate to purposely decay democracy further. He had ripped out the heart
and soul which makes a real democracy. And thus, was relying on the exterior
skeleton that was left behind to feed his regime democratic legitimacy.
This may have fooled some in the past, but looking to the future, we must be
vigilant that the person whom we call President doesn’t turn a democracy into
something that could hurt us.
Editor’s Note: Also read “The Vision Thing: What Kind of Country are we
Voting For?” and “Our Constitutional Conundrum: A Commentary“.

Posted by Thavam