Featured image from the Sunday Leader
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.
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.
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“.