July 9, 2022 should resonate as a historic moment in Sri Lanka’s political history – its Bastille Day. After months of public protests demanding that the president and prime minister resign amidst a deepening political and economic crisis, crowds stormed into the Presidential Secretariat, the president’s official residence and the official residence of the prime minister, dismantling every barrier that stood in their way.

In the wake of this significant event, President Gotabaya Rajapaksa fled the country, and Prime Minister Ranil Wickremesinghe was elected as interim president.

Unlike any previous instance in the country’s history, today the people are united. They have jettisoned their customary divisions over ethnicity and religion, the usual suspects of a long history of political conflict that led to the civil war that ended in 2009. Children, university students, trade unionists, professionals and retired citizens – people from all walks of life – gathered to chant “Go Home Gota”. For months, under the banner and hashtag GotaGoHome2022, people were camped in GotaGoGama on Galle Face Green outside the Presidential Secretariat, and in other parts of the island, demanding that President Gotabaya Rajapaksa step down. But the demands of the citizens’ protest, which has come to be known as the Aragalaya, went further to unveil the need to usher in a new political culture to end decades of corruption and nepotism and to enhance human rights and an inclusive culture in multicultural Sri Lanka.

In her blog post The People in the Palace, Dinesha Samararatne situates the recent actions of the Aragalaya against the backdrop of the broader constitutional challenges that Sri Lanka has been facing, and describes the contextual landscape necessary to understand the deeper political problem. She concludes by highlighting that the most challenging aspect of the current political crisis is the weakness of the constitution, which has failed to deliver on its promise of popular sovereignty. This in turn has meant that the constitution has failed to promote human flourishing but instead has engendered systemic abuse of power leading to political and economic inequality. In light of the current constitution’s failure, what is to be done? Sri Lanka is at a crossroads in her constitutional order.

The constitutional dilemma

The present constitutional dilemma demonstrates the inability of the current constitution to respond to the demand of the people for deep re-democratisation with a complete overhaul in political leadership. This dilemma is first manifested as a constitutional design hurdle. The existing provisions make it impossible to effectively check the executive president. Impeachment is a cumbersome process requiring at almost all stages two-thirds majority approval in parliament making it difficult to muster the necessary votes to unseat an incumbent president. In a parliament, where the majority still belongs to Gotabaya Rajapaksa’s party, the SLPP, it was impossible to impeach President Rajapaksa. When President Rajapaksa finally resigned, as per Article 40 of the Constitution, it is the parliament that elects from one of its members the next president to serve the remainder of the term (the current term ends in 2024).

On 20 July Ranil Wickremesinghe was elected as the Executive President by parliament. But Ranil Wickremesinghe as president was not the type of leadership change the Aragalaya has been demanding for the past few months. President Wickremesinghe suffered an unprecedented defeat at the 2020 general election and his party only managed to secure one seat in parliament through the national list, a system that permits a member of a political party to be appointed based on the proportion of their share of the national vote. This process has been abused several times by allowing defeated members of parliament to indirectly re-enter the legislature. Gotabaya Rajapaksa, however, appointed Mr. Wickremesinghe as the prime minister to address the public upheavals on May 9. This, in turn, enabled Mr. Wickremesinghe to be included in the list of candidates for president declared for the secret ballot in parliament on 20 July. Unsurprisingly, after being rejected by the people in 2020, he is currently facing extreme public pressure to resign. Immediately after assuming office, President Wickremesinghe launched a brutal attack on the peaceful protesters violating their rights to peaceful protest. This shows the blatant lack of political will to listen to the re-democratisation demands of the people’s movement and questions the possibility of resolving the crisis through the existing constitutional framework.

Second, and most importantly, this constitutional dilemma raises questions about the legitimacy of the current constitution. For the peaceful resolution of any political crisis, as constitutionalists, we resort to constitutional means. But at what point do we truly call into question the legitimacy of the constitution? At its inception, the present constitutional order’s representative nature was questionable. It entrenched a unitary and majoritarian Sinhala-Buddhist conception of the state that excluded diverse minorities. The creation of the hyper-presidential system further weakened the central representative body, the parliament. It equally weakened the judiciary as a significant check, thereby paving the way for authoritarian governance. Various amendments were passed both as correctives to this asymmetric system of power but also to further consolidate the powers of the president. This generated what has been called a constitutional ping pong through amendments in which a government replaces the amendment of a previous regime. This engendered significant destabilising effects on the constitutional order of the country. The recent 20th Amendment further enhanced the powers of the executive with limited checks and compromised the independence of fourth branch institutions. The current political and constitutional crisis is thus a continuation of the past, where internal constitutional re-organisation through amendment has failed to resolve Sri Lanka’s constitutional woes. As a result, the Aragalaya is the direct reflection of the diminished public confidence in these governing institutions and a rejection of those who govern. The Aragalaya brings to the fore this core question of the legitimacy of the constitution and underscores why a radical constitutional re-ordering is much overdue.

Thus, electing a president under the current constitutional scheme has only perpetuated the vicious cycle of politics and has failed to resolve the deeper political problem – the tension between the sovereign people and their representatives.

The people v. representatives

From a constitutional theory perspective, the crisis reflects the tension between the written constitution, under which a regime that lacks legitimacy is currently functioning, and the re-activation of the sovereign people’s extra-legal constituent power amidst the dire distrust over representative rule. While constituent power is extra-legal and often understood as the symbolic unification of the people, in Sri Lanka it has become a factual reality. The people’s movement rejects all parties represented in parliament and holds them responsible for the democratic and economic decline since Sri Lanka became independent in 1948. The current situation suggests that the social contract has been breached, that the people question the authority of the constitution, therefore rendering it illegitimate. Given this tension, resolving the constitutional crisis through the existing constitutional framework without providing for an exercise of constituent power would negate the will of the people as the bearers of sovereign power, the edifice upon which the modern democratic state is constructed.

Constituent power has been understood as a juridical form of sovereign power, which is vested in the people in the case of Sri Lanka. Andreas Kalyvas differentiates it from sovereign command to that of a creation of a new constitutional order. But Antonio Negri goes further. Constituent power, he says, must not only be viewed as norm-generating, but “primarily as a subject that regulates democratic politics.” Thus it connects the democratic expression of the people by carving out the constitutional form from the political domain (Martin Loughlin). In this sense, what follows is that a constitution is a product of political conditions and when political conditions change, so do legal conditions. It is the recognition of this political space that is absent in the current constitutional discourse in Sri Lanka.

According to Loughlin, the political space incorporates “an unresolved dialectic of determinacy and indeterminacy, of closure and openness.” Put simply, the symbolic political pact of we the people at the founding is not simply limited to an idea but also materializes in reality, often as violent uprisings (e.g. French Revolution, the Arab Spring). This is because the political conflict within the polity creates tension over the symbolic act of founding. Aggravated by the economic crisis, it is this tension that Sri Lanka is experiencing. The political power generated through the people’s Aragalaya can only be controlled and exercised through a new constitutional framework. The closure and openness of the political space that Loughlin highlights, and its undecidability, thus provides, according to Kalyvas, “the available space for the re-activation of the constituent power, which up to that moment remains in a dormant and subterranean form”. This echoes Jon Elster’s view that “new constitutions almost always are written in the wake of a crisis or exceptional circumstances of some sort…” Sri Lanka is at this exceptional moment in her political life.

What we are experiencing with the Aragalaya is the awakening of this sleeping sovereign and the shifting towards a new political order. And this very task of rethinking the political order activates the constituent power of the people because a new political order requires a new constitutional form. In other words, the inability of the existing constitutional order to give effect to the fundamental restructuring of the political order that the sovereign people demand is what makes the existing constitution lose its legitimacy.

As discussed above, the Aragalaya is also a clear rejection of their representatives by the sovereign people. Representation is nothing more than a principal-agent relationship. The agents or delegates are bound by a paramount duty to their principals or the sovereign people because “their power comes with strings attached, tethering them to their respective sovereigns”. While representatives are custodians of the sovereign power of the people, it is the people who are in lawful possession of that power.

It is against this backdrop that the citizens’ movement demands a people’s council. With the election of President Wickremesinghe, the discourse on citizens’ assemblies by the activists of the Aragalaya has revived together with discussions on dissolving the current parliament. These public assemblies would provide for citizens to exercise their constituent power by instructing the delegates. They would be able to revise and recreate the constitutional order and most importantly prevent the usurpation of sovereignty by the government.

This position, however, should not be mistaken for the promotion of demagoguery or instability because we know people are not unitary but a plurality. And at every revolution, the question of the vanguard -or who becomes the people’s voice – is the most critical in determining the victory or betrayal of such people’s uprising. What should follow is the establishment of institutions through democratic deliberation and consensus to govern in the interim until such time as a new constitutional order is created. The need is to recognise the democratic sovereignty at this exceptional moment of time. It is imperative to understand this historic event that breaks away from the established order and acknowledge its promise for a new beginning for durable democratic governance beyond short term fixes. It is indeed daunting and perhaps unfathomable. But the only way out is the way through – by acknowledging this new political truth and seizing this brief opening of the constituent moment. Failing to do so would mark this historic moment as yet another lost opportunity for Sri Lanka.

(This article was first published on the blog of the International Association of Constitutional Law)