Endemic over-simplification by internal and external actors and purposeful attempts to reframe political debates have ensured the conversation concerning Sri Lanka’s government continues to be conducted in democratic terms. Yet that categorization is presumptive. Using the lexicon of democracy to discuss Sri Lanka presupposes that the state is fundamentally democratic or accepts that the administration aspires to be democratic.
In reality, although Sri Lanka has hovered in limbo between authoritarianism and democracy since its independence, the last few years have seen its reversion to authoritarianism. In the transition from the 1948 Constitution to the 1978 Constitution, Sri Lanka began its slide into authoritarianism. This year, the 18th Amendment completes that course.
Sri Lanka has normalized authoritarianism by guising it in the language of democracy, a political Trojan horse. Unfortunately, in a country with a young democratic tradition, the lines are now blurred between authoritarianism and democratic governance. The concepts of legality and illegality are no longer legible in Sri Lanka; people can no longer distinguish between what is law and what is not law, what is legitimate and what is illegitimate, and from whence authority is drawn and the essence of sovereignty in democracy. While vestiges and remnants of democratic governance remain in the form of the Constitution and government structure that resembles that of a democracy, these, too, are falling away.
Drawing distinctions between authoritarian and democratic governance in transitional countries is a complex task, requiring its undertakers to return to basic concepts of governance to evaluate these political systems. Here, we attempt to break down Sri Lanka’s political identity and distinguish between authoritarian and democratic elements.
Consensus in contemporary political science yields a definition of sovereignty to the effect of “supreme authority within a territory.”1 R.P. Wolff defined authority as “the right to command and correlatively the right to be obeyed.”2 The right of authority stems from legitimacy.
Sovereignty differs dramatically between authoritarian and democratic states. The simplest difference is that concerning legitimacy. In authoritarian systems, the Executive determines legitimacy, assuming the right to command and be obeyed and asserting sovereignty irrespective of the people. Democracies necessarily limit the power of sovereignty, because the people grant legitimacy rather than vice versa. The process of legitimization is nearly opposite between the two types of government. Put simply, in an authoritarian state, the people must comply with a law because it comes from the Executive; in a democracy, the Executive may issue a law only if it corresponds with the will of the people.
Sovereignty is inherently problematic for democratic governments. Any transfer of the authority of the body politic jeopardizes the relationship of government to natural law, or people’s concept of what is practically rational, its source of legitimacy in democracy:
Any transfer of the authority of the body politic either to some part of itself or to some outside entity — the apparatus of the state, a monarch, or even the people — is illegitimate, for the validity of a government is rooted in its relationship to natural law.3
The concept of sovereignty held by any other than the body politic, then, is less than democratic because it shatters the link between government and natural law.
The concept of natural law has two primary components as conceptualized by Thomas Aquinas. The first is religious, that natural law is part of divine providence; the second is that which is relevant to the concept of sovereignty as it relates to political science and contemporary democracies. This second aspect of natural law “constitutes the principles of practical rationality, those principles by which human action is to be judged as reasonable or unreasonable; and so the theory of natural law is from that perspective the preeminent part of the theory of practical rationality.”4 Stating it another way, natural law is, “from the human’s-eye point of view…a set of naturally binding and knowable precepts of practical reason.”5 The ideal of natural law appears in democracy as practiced as the beliefs and will of the people. Transferring the authority of the people to grant the state sovereignty is necessary to governance, however, that sovereignty remains legitimate only so long as that sovereign entity abides by the will of the people.
Sovereignty’s inherent problems for democracy are compounded in situations such as those precipitated by the 1978 Constitution and subsequent amendments. Exploring the problems of sovereignty in relation to democracy, Philpott writes that sovereignty can preclude pluralism and accountability:
Sovereignty gives rise to three dysfunctionalities. First, its external dimension renders inconceivable international law and a world state…Second, the internal dimension of sovereignty, the absolute power of the state over the body politic, results in centralism, not pluralism. Third, the supreme power of the sovereign state is contrary to the democratic notion of accountability.6
Pluralism and accountability are essential to democracy. These, like natural law, are concepts that define democracy and without which no government can call itself a democracy.
In a democratic state, government acknowledges and struggles with these problems of sovereignty, generally in the Constitution and structure of government. After all, there is no pure democracy; the health of a democracy is measured by how that state envisions and implements democracy in practice and how closely that practice adheres to the core concepts of theory.
The form of sovereignty established by the 18th Amendment, in the person of the President, is incompatible with democratic governance. The 18th Amendment concentrates government powers in the Executive without regard for the consideration or interpretation of the will of the people or their representation in other branches of government, shattering the link between government and natural law. Moreover, the amended Constitution disregards this tension between the ideal democracy and the imperfect mechanisms by which countries attempt to realize it. Rather, it ignores this mission and makes no pretense of drawing legitimacy from the people but fully shifts the right of the generation of legitimacy to the Executive.
How is legitimacy produced, created? How is legitimacy created in an authoritarian state and a democratic state? In an authoritarian state, legitimacy is proclaimed. Whatever the authoritarian ruler says will be law becomes law by virtue of that declaration. What Hitler said was law was law. Legitimacy in an authoritarian system is reduced to what is understood from the person in power. By contrast, in democracy, legitimacy is achieved through process. There is a mediation of law-making and process of legitimization of law.
The question of how difficult it is for the Executive and for the party in power to change law and amend the Constitution is essential to assessing a democracy, which is concerned with the protection of the minority. Authoritarianism has no such concerns, and laws may be changed easily. Examples of procedures in democracies such as the United States for amending the Constitution, passing laws versus authoritarian systems.
Changes to the Constitution fundamentally change a political system and can affect the mores and ethos of a nation. Arguments that Constitutional amendments are only making de facto practices de jure neglect to recognize the importance of the document – there is a wide gap between de jure and de facto. Codifying a practice elevates it. Moreover, a written Constitution is the framing document for the country and its government. Moreover, the Constitution shapes national identity and values.
Separation of Powers
Independence of judiciary. Judiciary reduced to agency rather than branch of government.
While the protection of pluralism is one of the central missions of democracy, authoritarian regimes inherently undermine or actively oppose pluralism within and outside of government, in civil society. An authoritarian regime masquerading as a democracy may maintain an ostensible diversity of political parties and non-governmental organizations, however, those parties and actors are progressively removed from power through a variety of mechanisms, both direct and indirect.
In Sri Lanka, supporters of authoritarian government choose to evince a deliberately obtuse interpretation of the 18th amendment, claiming it simply supports a strong Executive, and blatantly misrepresent its relevance to the public and political parties by claiming that it empowers the people to elect leaders free of term restrictions and facilitates political diversity.
The argument that the incumbent’s increasing political power is a reflection of popularity is thus rendered bogus. In Sri Lanka, some make this claim based on UNP defectors, but ignores what will become the de facto effect of the 18th Amendment: any legislation which so facilitates the centralization of power in the person of the Executive creates a power imbalance that forces opposition to resign themselves to ineffectiveness or join their opponents. In other words, “If you can’t beat ‘em, join ‘em.” The same dynamic serves to stifle opposition within the party. The 18th Amendment amounts to a form of soft coercion politically, forcing opposition to choose between principles and practicality. The result is a declining pool of candidates from which voters may choose, thus effectively reducing rather than increasing their power of election.
Attempting to align the debate over the 18th Amendment along lines of democratic choice is a politically savvy superficial effort to transfer the support of the public on one issue – in favor of voter choice – to support of another, independent issue they may not yet have considered – the end of term limits. Moreover, it distracts from the other pernicious effects and implications of the Amendment. These tactics betray a calculated effort to manipulate public opinion, yet they will be defended with professed incomprehension of the criticism and righteous indignation. The effects of this strategy on democratic tradition in Sri Lanka are immeasurable, as the lines between legal and illegal, legitimate and illegitimate, and democratic and authoritarian blur further for the public. Any foundation and hope for democratization will disappear altogether as the democratic values and precepts modern democracies take for granted as universal cease to be considered at all in discussions of governance and law much less their practice.
Supporters of the Constitutional changes effected over the past 30 years claim they have created a shift, not an ending—but such foundational shifts simply precede collapse. Although they have been successful thus far in publicly concealing the extent to which the 18th Amendment pushes Sri Lanka toward authoritarianism, the administration and its supporters will soon find themselves the central character of the Emperor’s New Clothes, extolling their improvements to Sri Lanka’s democracy while the rest of the world sees only the newly visible authoritarian structures and practices that lie underneath. In other words, Sri Lanka is becoming a mockery of democracy that everyone but the perpetrators of this change recognize as such.
About the Author:
Rebecca Buckwalter-Poza is a young American scholar presently engaged with the AHRC as an intern.