By Carlee Wright
Carlee Wright is first-year MAIA student and Research Assistant at the CCSDD. She is also a Virtual Student Federal Service (VSFS) intern in the Political Section at the U.S. Embassy to Sri Lanka in Colombo.
Most likely, many of us have heard the term “history repeats itself.” This phrase is used almost as a heed that sociopolitical and economic quandaries from the past could reemerge and cause similar issues for the current populace. In the case of Sri Lanka, this maxim is eerily relevant. History is indeed repeating itself –– and in almost an identical manner.
The 18th Amendment to the Constitution:
When former President Mahinda Rajapaksa came to power in 2005, he proposed the 18th Amendment to the Sri Lankan Constitution, later ratified by the Sri Lankan Parliament, which brought about several modifications. The most notable of these changes include the following:
- Bringing independent commissions under executive authority
- Substituting the 10-member Constitutional Council with a 5-member Parliamentary Council
- Giving the President power to remove the Prime Minister
- Establishing presidential immunity
- Eliminating presidential term limits
These changes to the Constitution were presented by the Mahinda Rajapaksa Administration as necessary given the vulnerable political situation in the country. Under former President Mahinda Rajapaksa, the nearly 30-year civil war in Sri Lanka ended. This conflict has often been characterized as ethnic between the Tamil and Sinhalese, but in reality it occurred as a result of economic injustice. The war laid the foundation for a political atmosphere that supposedly justified all-powerful politicians and reactionary policies.
The 19th Amendment to the Constitution:
Then, in a landmark election in 2015, Sri Lankans elected former President Maithripala Sirisena. One of the most notable elements of the Sirisena Administration was the approval of the 19th Amendment, which repealed the 18th Amendment. The main features of the 19th Amendment were that they:
- Gave independent commissions back their independence
- Reintroduced the 10-member Constitutional Council
- Revoked the President’s power to remove the Prime Minister
- Allowed court cases to be brought against the President
- Limited the presidential term limit to five years
For many Sri Lankans, the Sirisena Administration reestablished democratic norms.
The 20th Amendment to the Constitution:
However, in November 2020, Sri Lanka elected Gotabaya Rajapaksa, the brother of Mahinda Rajapaksa and former Secretary of Defense, as President. President Gotabaya Rajapaksa implemented the 20th Amendment to the Constitution, which removes the 19th Amendment and essentially reinstates the 18th Amendment introduced under his brother. The contents of the Amendments are inherently indistinguishable. For example, the 20th Amendment once again:
- Recategorizes independent commissions under executive authority
- Reintroduces the 5-member Parliamentary Council
- Grants the President power to unilaterally remove the Prime Minister
- Provides the President with immunity against legal proceedings during his/her presidency
- Removes presidential term limits
Indeed, the 20th Amendment is essentially a replication of the 18th Amendment. In addition, another sociopolitical issue emerged once again that seemingly validated this expansion of power (at least for the President and his party): the 2019 Sri Lanka Easter bombings. This terrorist attack shook the island nation once again and gave President Gotabaya Rajapaksa a reason to consolidate his power with the excuse that the country’s stability depended on it.
A Historical Approach to Understanding Unconstitutional Constitutional Amendments:
Another notable aspect of this repetition in history is that it is all happening within the legal framework of Sri Lanka’s Democratic Constitution. Therefore, another central question arises: is the 20th Amendment in Sri Lanka an example of an unconstitutional constitutional amendment? These are amendments that adhere to the official constitutional amendment process, “but are aimed at achieving anti-democratic aims –– i.e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections.” Based on this definition, not only is the 20th Amendment clearly an example of an unconstitutional constitutional amendment, but the 18th Amendment is as well.
The Future of Democracy in Sri Lanka:
The implications of the ratification of the 20th Amendment are alarming. President Gotabaya Rajapaksa announced at the inaugural session of the new Parliament that after revoking the 19th Amendment, the next step during his tenure would consist of “formulat[ing] a new Constitution suitable for the country.” The will to draft a new Constitution, coupled with the fact that the political party led by President Gotabaya Rajapaksa, the Sri Lanka Podujana Peramuna Party, leads a majority in Parliament, might just establish Sri Lanka as an authoritative government with a president that manages to serve for life. Therefore, in the case of Sri Lanka, the 20th [unconstitutional constitution] Amendment may not simply contribute to the decay of democracy, but decompose of it entirely.
 An unconstitutional constitutional amendment, according to Dixon, Landau, and Roznai in their article “From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras” is defined as “the use of tools of constitutional change to undermine democracy.”
 Dixon, Rosalind and David Landau. “Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment.” Oxford University Press, vol. 13, no. 3, 2015, pp. 606-38. doi:10.1093/icon/mov039. Accessed 2 Oct. 2020.
 “Sri Lanka to Quash Constitutional Amendment that Pruned Presidential Powers: Sri Lanka
Constitution.” EFE News Service, Aug 20, 2020. ProQuest, http://www.proxy.library.jhu.edu/login?url=https://www.proquest.com/wire-feeds/sri-lanka-quash-constitutional-amendment-that/docview/2435536531/se-2?accountid=11752. Accessed 7 Jan. 2021.