The People in the Palace

A mother carrying a young infant, a university student sporting a black bandana which reads ‘GotaGoHome’, an elderly couple, a group of young schoolgirls and a father pushing a wheelchair with his son caught my eye on July 9 at the Aragalaya (roughly translated as the struggle) in Sri Lanka. At some point, I pass around packets of biscuits a home bound elder had sent through us, to distribute at the protest. I hand them out and they are accepted, not with mere gratitude but with a sense of solidarity.

For more than two weeks Sri Lanka has had an acute shortage of fuel, but it is estimated that more than 500 000 people flocked to Colombo to peacefully compel their President and Prime Minister to step down. Ironically this President was elected with 52% votes in 2019. People walked, rode trucks, carpooled, cycled, boarded tightly packed trains and buses to be there. I came back home that night confronted by what I had experienced that day and with more questions than answers about Sri Lanka’s democracy and what that means for constitutional governance. That day, the President promised to resign by July 13 and the Prime Minister also promised to resign. After much uncertainty, the death of a protestor and much more struggle and pain, the resignation of the President was officially announced today (July 15). The hitherto impenetrable Executive Presidency has now, fallen. We can finally hope that this office will be abolished from our constitution and from our political imagination.

From Protest to Imagined Community

This is Sri Lanka’s moment of re-democratization. In 1931, Sri Lanka was the first to receive universal franchise in Asia but it is in 2022 that the People are coming to the foreground as a democratic force. Before this, it was the minorities and workers who were on the streets, making normative demands of the state. When the rural youth made such demands collectively, they did so with violence. But these movements remained in the fringes of a society which suffered from many ailments, including dynastic politics, corruption and ethnonationalism. In 2022, island-wide peaceful protests have built up. The Aragala is now a real and an imagined community, demanding accountable governance and a better future. Questions about representation within and by the Aragalaya come up frequently. The recent occupation of the Presidential Secretariat, the official residences of the President and the Premier, and of the Prime Minister’s office have raised concern among the public, particularly among the middle-class. As of yesterday, the protestors have vacated these buildings, except the Presidential Secretariat.

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Through these disruptions and chaos, Sri Lanka is experiencing something new and unexpected. The multitude is speaking and they can be and are being heard. They (we) are exposing the crisis of representation in Sri Lanka and offer a compelling critique of the status quo, including of constitutional governance as we have experienced it thus far. At some point the normative demands made by the public ought to be translated into a reform agenda. The proposed 21^st Amendment of the Opposition captures some of that. But for a more complete realisation of these demands we require a democratic process which involves some measure of expertise as well. But in my view, in Sri Lanka, we are still at the stage where we are seeking to understand the implications of our re-democratization. I outline four such implications below.

The People are critiquing the national security discourse. Sri Lanka has a history of militarization of law and order as well as an ethnonationalist security discourse. As a result, national security was often interpreted to mean the security of the Government. Today, that is being challenged by the People. At public protests, people openly invite the police and the Army to join the Aragalaya. Arbitrary arrests and police/army brutality against protestors are being challenged by lawyers acting in public interest and is being condemned by the Bar Association of Sri Lanka (BASL). When the Inspector General of Police declared police curfew the day before the planned protest on July 9, the pushback was immediate. The BASL issued a statement declaring it to be illegal.

The People are reviving the discourse on economic inequality. Since July 9 up to July 14 protestors occupied the President and the Prime Minister’s official residences. Powerful images and videos are being shared via social media by people who visit these premises. Average citizens using the plush furniture, marvelling at the swimming pool and using the gym. Memes are being made and shared about the inequalities between the representative and the represented.

The inclusion and representation of women is another striking feature of the People’s movement. Sri Lanka’s political sphere has been male dominated and patriarchal despite the granting of universal suffrage in 1931. Women’s representation in Parliament has never been beyond 12%. In the protests however, women are in the forefront and are an integral part of it. Women have been extremely vocal and taken initiative as politicians in the Opposition, as journalists, as activists.

It is clear then that the demands of the Aragalaya are for ‘a system change.’ One that involves but is not limited to structural change. The demand is for a new political order based on values of accountability, transparency and responsiveness. The need for such a call is made obvious by an Executive President, who is now on the run, who held an entire nation to ransom, until his personal safety was secured.

Yet, I cannot help but notice the limits or blind spots of the Aragalaya. To date, it has fallen short of bringing within its discourses the question of self-determination of Sri Lankan Tamils or the discrimination experienced by Muslims. However, at least on the fringes of the Aragalaya, the discourse about discrimination of minorities is alive and abound. Moreover, even if the Aragalaya is a moment of re-democratization, it is a precarious moment. It is a leaderless, spontaneous and nebulous mass of people. That has been its strength, but it is also its risk. Only time will tell.

Challenging the Constitution

What does this mean for constitutional governance and rule of law? It is most clearly a critique and rejection of the concentration of executive power and of the Executive Presidency. The repeated wilful refusal to repeal the Executive Presidency by numerous governments is now coming back to haunt the political class. Beyond that, it is also a critique of electoral representation. People have had enough of the abuse of power by elected representatives, they have had enough of political parties that fail to channel and modulate people’s needs into government policy making and resource allocation. The Aragalaya is a powerful critique of the rule of law that fails to punish corruption, reclaim stolen wealth and to prevent the kind of crisis that Sri Lanka is faced with. It is also a critique of political leaders, public institutions, professionals and experts that fail to recognise human suffering, empathise and respond appropriately.

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What insights can comparatists gain from this story? It is a given that all these developments affirm the limits and risks of court centric scholarship. This is not to say by any means that it is not useful, but rather, to point to the need to meaningfully bracket its significance. It reveals the need to modulate electoral representation with other forms of representation, such as representation of democratic norms through a guarantor branch (fourth branch/integrity branch). As I have noted on this blog previously , one of the progressive developments that has emerged from Sri Lanka’s current crisis is the consolidation of the support for a guarantor branch among a range of political actors.

The Sri Lankan story also points to the risks associated with a presidential system and illustrates its potential to undermine democracy from within. In Sri Lanka’s past, the Executive President maintained legitimacy despite the internal armed conflict, despite targeted discrimination of Muslims and even despite allegations of corruption and family rule. Only a minority of voices called for the office to be abolished. What has changed now is that the economic crisis is catastrophic, it has spared no one and it is material. This critical and new event has created a new moment in Sri Lanka’s political discourse. It made the unimaginable possible: the deconstruction of the narrative of charismatic political leadership for Sinhala-Buddhists, delivering Singapore type economic development. This is an encouraging but also cautionary tale, one which tells us that in an era of catastrophic events, including the climate crisis , the unimaginable might be possible in other parts of the world too.

The most challenging insight to emerge from this story is the critique of the current Constitution and even the very idea of constitutional governance. Sri Lanka’s current constitution is problematic: it concentrates power in the executive president, prohibits judicial review of legislation even provides for means to pass laws that are unconstitutional. Many perceive this Constitution to be not only part of the problem but increasingly also a root cause. Therefore, many question its capacity and legitimacy to guide Sri Lanka out of this crisis. Many see this document as indifferent and also as promoting systemic abuse of power, human suffering at a large scale, and preserving and advancing economic inequality. The people see constitutional governance as failing to deliver on the promise of the sovereignty of the People and as failing to compel the state to promote human flourishing. These are hard questions and questions that constitutional law scholars and practitioners are perhaps not equipped to respond to. That itself is another crisis, a crisis of ‘expertise.’

There is more to be said, about emotions, location, belonging, suffering, hope, exhaustion, about mentoring others through a crisis, about care and what all of this means for scholarship. I leave that task for another day. For today, I will rest and raise a glass to my fellow citizens. Come what may, we now have a Sri Lankan story of democratization that we can talk of, for generations to come.

Dinesha Samararatne, 15 July 2022

The week on Verfassungsblog

The Hungarian government is publicly saying that it is nearing a deal with the European Commission to unlock the Recovery Funds that have been withheld because the Commission has not yet approved Hungary’s plan for spending those funds. Apparently, Hungary has agreed to four conditions that will allow the €7bn worth of grants and about €8bn in low-interest loans to be approved. KIM LANE SCHEPPELE explains why this would be a colossal mistake.

In February 2022, the ECJ delivered a ruling in cases brought by Hungary and Poland against the European Parliament and Council. Not only did the ruling uphold the regime of conditionality for the protection of the EU budget; it also entered into the domain of European constitutional identity. Instead of undermining the European commitment to the rule of law, Poland and Hungary may have inadvertently consolidated the place of rule of law in the heart of EU identity, argues JAKE GOODMAN-PALMER.

MICHAŁ STAMBULSKI and KAROL MUSZYŃSKI are fundamentally dissatisfied with the discourse on the rule of law in Europe. They argue that “militant doctrinal constitutionalism” is too moralistic,  blind to context, and too close to political activism.

Hungary, Poland, and Finland next? MARTIN SCHEININ identifies first signs of rule-of-law backsliding in Finland. There, in light of Russia’s war on Ukraine, the parliament recently expanded the Emergency Powers Act, which could yet become an extremely dangerous tool. There is good reason to be on high alert.

The UK Government’s agenda to erode human rights and to disentangle the UK from its European partners has now been fully materialised. Soon after Brexit, the UK Government announced its intention to replace the Human Rights Act, which incorporates the rights set out in the ECHR into domestic law, with a British Bill of Rights. ARISTI VOLOU outlines, how the draft Bill will water down human rights protection in the UK.

In Israel, once again the Knesset is about to be dispersed. PM Naftali Bennet explained that the dissolvement was necessary to avoid “constitutional chaos”. Bennet was referring to the prospect of the expiration of the Emergency Regulations, that the Knesset has been unable to agree on extending. TAMAR HOSTOVSKY BRANDES wonders how the expiration of regulations, let alone emergency regulations, can amount to a constitutional crisis?

The French elections on 19 June 2022 are historic. Not only did it mark the end of the “absolute majority” of the re-elected President’s party in the Chamber of Deputies, but it also brought about an upheaval in the political and institutional habits in force since 1958. The result is ambivalent, argues NICOLAS SÉÉBOLD. June 2022 will certainly have sounded the death knell of French “presidentialism”, but the concomitant advent of such a divided Assembly will perhaps not favor the emergence of a renewed parliamentarism.

Camping as a form of protest. The reasons for the judgment of the German Federal Administrative Court of May 24 on the legality of climate camps have now been published. In it, the Court establishes a far-reaching accessory protection of logistically necessary protest infrastructure facilities. But JAN-HENRIK HERCHENRÖDER and MAXIMILIAN SCHNEIDER are also critical.

The total legalization of cannabis in Germany is progressing rapidly. In the second half of the year, the government plans to present a draft law. This is eagerly awaited, not only by the many lobbyists and investors who are looking forward to a new billion-dollar market. The many German cannabis consumers also understandably want legal certainty and freedom from prosecution at last. However, ROBIN HOFMANN still sees a number of unanswered questions that the federal government has yet to clarify.

In a decision dated June 14, 2022, the Karlsruhe Administrative Court ruled that the German Federal Constitutional Court should have answered questions posed by a journalist about the dinner shared by constitutional judges and members of the federal government. This practice conflicts with the court’s own claim to transparency. Reason enough for JANNIKA JAHN to question this practice.

Claudia Pechstein‘s legal battle against nternational Skating Union took her not only to Switzerland and Germany, but also before the ECtHR and now the German Federal Constitutional Court. JENS ADOLPHSON shows why the ruling of the Federal Constitutional Court contains a historic statement for international sports jurisdiction – and which questions remain unanswered.

Now, the European Court of Human Rights has also ruled on the German Bargaining Unity Act. Like the German Federal Constitutional Court, it has also come to the conclusion that the new Sec. 4a TVG infringes on human rights. Yet the Court cannot bring itself to condemn Germany for this. EVA KOCHER believes this to be a controversial decision, in which, as in the case of the FCC, two judges wrote a dissenting opinion.

Should an additional law bachelor’s degree be introduced in Germany? A German law professor recently found strong words and argued against this in a German newspaper. But those who dish it out must also be able to take it. JULIAN KRÜPER’s response: “In contrast, the rhetoric of the article […] seems not very suitable and in a highly embarrassing way that was thought to have been overcome long ago misanthropic.”

Four months into Russia’s war on Ukraine, there has been a tremendous show of support for Ukrainians fleeing violence and the atrocities of war – in Europe and elsewhere in the world. As is well-known, European states have hammered out pragmatic administrative solutions to accommodate large numbers of incoming person, going to great lengths to provide for beneficial welfare arrangements. Against this backdrop, JONAS BORNEMANN interpretes the crisis in Ukraine as a tipping point for humanitarian protection more generally.

There is a shortage of staff at German airports. Accordingly quickly, calls for increased use of foreign workers as a remedy, especially those from Turkey, were heard. This is to be achieved by reforming the law on labor migration, as HOLGER KOLB clarifies.

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