Breakdown of Constitutional governance in Sri Lanka – What is the way ahead?

The doctrine of necessity, adopted by other countries to overcome political crises, is not the ideal remedy for Sri Lanka, which has to necessarily find a solution from within its Constitution.

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AN unprecedented political crisis has arisen in Sri Lanka, leading to the breakdown of constitutional governance. Unorganised angry protesters, who are deeply affected by economic meltdown, have forced two Prime Ministers Mahinda Rajapaksa and his successor Ranil Wickremsinghe to resign, and have driven out the executive President Gotabaya Rajapaksa to high sea before storming the presidential residence in Colombo.

Political history of Sri Lanka

Sri Lanka, formerly known as Ceylon, is an island in the Indian Ocean. The island, after its tryst with the Portuguese and the Dutch for two centuries, fell into the hands of British imperial power in 1815. Anglo-Saxon jurisprudence was soon implanted by the British colonial masters. However, following the recommendations of the Soulbury Commission, Ceylon achieved independence in 1948 under the Ceylon Independence Act 1947 passed by the imperial British Parliament.

Unlike the freedom movement in India, the Ceylon National Congress, influenced by constitutionalists under Ceylonese statesman and the first Prime Minister of Ceylon D.S. Senanayake, didn't openly confront the British imperialists. Even after independence in 1948, due to the lack of political readiness, Ceylon continued dominion status under the British crown for more than two decades. It was only in 1972 that Ceylon adopted a Constitution to become a republic. It changed its name under Buddhist influence to Sri Lanka.

However, a new Constitution was enacted in 1978 with an all-powerful executive President and Buddhism as the State religion. The declaration of Buddhism as State religion reportedly sowed the seeds of ethnic conflict in the island. It made the 12 per cent Hindus, nine per cent Muslims and eight per cent Christians in the island nations lesser citizens. The Tamils in the northern part of the island intensified a separatist movement. Sri Lanka has not been at peace since then. On Buddhist nationalists' demand, a strong military has been raised, putting burden on the State exchequer to the extent of 5.9 per cent of the Gross Domestic Product ('GDP') in 1995, which is a factor in precipitating the present economic meltdown.

Also read: A Human Rights Concern: Shrinking Minority Rights in Sri Lanka

Reasons and consequences of Sri Lanka's economic crisis

The causes for the economic woes of Sri Lanka are not too many to seek. They lie in the meagre foreign exchange reserve of $ 50 million as of May against its foreign debt default, which was at $ 51 billion in April. Of this, about 10 per cent are on onerous terms with China on infrastructure projects.

The total public debt rose above 100 per cent of the GDP of Sri Lanka in 2020, and is estimated to reach as high as 108.96 per cent this year and eventually scale 117.49 per cent in 2027. Even though a sovereign nation cannot go bankrupt in a legal sense – since its central bank can always print currency, default in serving its foreign debt repayment of $ 7 billion due this year has dangerous international consequences for a nation which depends on imports, particularly that of essential items.

The annual import bill of Sri Lanka is reportedly well into billions for buying oil, fertiliser, and food, among other things. However, with bottomed-up forex reserves of 0.55 billion, Sri Lanka reached the dead end, disrupting the supply of fuel, power and food. Sri Lanka immediately needs about $ 3 billion, reportedly to tide over the crisis. In the meantime, prices are soaring high, with inflation jumping to over 54 per cent last month. Why shouldn't people scream?

The political turmoil in Sri Lanka, as a direct fallout of economic mismanagement, has assumed greater importance. Her strategic importance in the Indian Ocean has put a serious question mark on geopolitical security issues. Its biggest lender China, which has lent over $ 5 billion, is not far away!

Also read: Crisis in Sri Lanka: Panellists from five South Asian countries see SAARC as a solution

Colombo has been stormed physically by an angry sea of people. The presidential residence was besieged by a mob over the weekend without any resistance from the armed forces and police. No doubt, history has seen many palaces fall to the people's anger. During the French Revolution in 1792, Jacobin revolutionaries stormed Versailles and forced King Louis XVI and his family to leave the city. The working class stormed the Tsar's winter palace in 1920 after the Bolshevik revolution. However, these raids by the people were against the autocratic monarchs.

What lies ahead?

Political pundits are asking how people could turn around so fast against the President and Prime Minister belonging to the Rajapaksa family, when they were elected with a thumping majority three years back in 2019, that too on a nationalistic and security agenda. The old adage "Don't take people for granted. No matter how much they love you, people will get tired eventually", has proven true in Sri Lanka.

What's the way out of the impasse? The Speaker of the Parliament in Sri Lanka has stated that President Gotabaya Rajapaksa will resign on July 13. There appears to be no way out for him, who is sailing in the high seas for his life. If he resigns, who takes over under the constitutional set-up in Sri Lanka?

Article 40(1) of the Sri Lankan Constitution mandates the election of a new President within a month by the Parliament to fill up a vacancy in the post. However, until a new President is elected, the Prime Minister may officiate as acting President.

In case the Prime Minister is unable to become President, as in the present case, since even Prime Minister Wickremsinghe has also resigned, the proviso to Article 40(1)(c) of Sri Lankan Constitution mandates that the Speaker of the Parliament shall act as the President. However, some political commentators think that an answer to the present popular uprising does not lie within the constitutional framework.

Also read: Coup against ousted PM Ranil Wickremesinghe lands Sri Lanka in Sirisena, Rajapakse-driven constitutional soup

Doctrine of necessity

However, the very thought of extra-constitutional remedies is fraught with dangerous consequences. No doubt, extra-constitutional remedies have been constitutionally sanctioned in many countries. In 1953 in Pakistan, when the Governor General Sir Malik Ghulam Muhammad dismissed the Prime Minister Sir Khwaja Nazimuddin and abolished the Constituent Assembly the next year, the Supreme Court of Pakistan, in the case of Federation of Pakistan versus Maulvi Tamizuddin Khan (1955), upheld the extra-constitutional action as constitutional by invoking the doctrine of necessity advocated by medieval English jurist Henry de Bracton.

This doctrine of necessity has found its way into some other nations also. In 2010, the Nigerian Parliament created the Office of Acting President and appointed the then Vice-President Goodluck Jonathan on the ground of necessity to fill the constitutional vacuum in the absence of then incumbent President Umaru Yar'Adua due to the latter's prolonged hospitalization, in spite of the country's Constitution not expressly allowing the same. The British government, invoking the doctrine of necessity, has recently introduced the Northern Ireland Protocol Bill to terminate Northern Ireland Protocol, which it had signed subsequent to the Brexit Withdrawal Agreement, even though the Bill, if passed, may place the United Kingdom in breach of international law.

Let us hope Sri Lanka does not fall into this trap of the doctrine of necessity and allows a military takeover. The All-Party consensus to elect a new President under Article 40(1) is the proper course of action in the democratic interest of the island.