Deepening Democracy – Constitutions and Constitutionalism

It is always a joy to arrive in Sri Lanka and I thank President Rajeev Amarasuriya for his kind invitation. There is something in the air of this beautiful island that drains the stress of big city living. I feel lighter and happier whenever I arrive, and last night was no different. I thank you for the kind words of introduction. In November 2018, I found myself in the book-lined study of the Indian jurist and friend of Sri Lanka, the redoubtable Fali S. Nariman. Why was I there? A group of Sri Lankan lawyers working under the banner ‘Lawyers for Democracy’ and led by Upul Jayasuriya, PC had reached out to me to help secure an opinion from Mr. Nariman. President, Maithripala Sirisena had dismissed Prime Minister Ranil Wickremesinghe. The President proceeded to dissolve Parliament and call for elections. The question was: were these actions constitutional? Nariman opined that the Presidential proclamation dissolving Parliament was ultra vires the 1978 Sri Lankan Constitution. Reading several provisions of the Constitution harmoniously, Nariman concluded that the proviso under Article 70(1) must be read as a fetter on the power of the President to dissolve Parliament until 4 ½ years after the first meeting / sitting of Parliament. Of course, as you know, the fetter would not apply where Parliament itself had requested early dissolution by a resolution passed by not less than 2/3rds of the whole number of members voting in favour of the resolution. I open with this episode because, here and now, we are again in the midst of a constitutional moment. Yet again, there is a legitimate concern of lawyers and the informed citizenry in Sri Lanka, on whether the Constitution and constitutionalism are being bypassed. It is again time for the legal community in the Asia Pacific and our neighbourhood to step forward and share suggestions based on our own lived experiences and learnings. Twenty-four years after the Indian Constitution was born in 1950, the leading Indian jurist, Nani Palkhivala, published a slim volume titled “Our Constitution Defaced and Defiled“. The book drew on the 6th John F. Kennedy Memorial Lecture delivered by the author in what was then Bombay. As the title of the book suggests, there is an undercurrent of lament that runs just below the surface of Palkhivala’s lucid prose. Why the tinge of sadness? Published in 1974 (four years before your Constitution), Indians had worked their Constitution for 24 years. In less than a quarter century, the Indian Constitution had been amended 25 times. Palkhivala felt that successive amendments had diluted many of the high values, central to the original compact between the citizens of free India and the State they formed. He was particularly distressed at the erosion of property rights and efforts by the State to constrict and confine the role of our Constitutional courts. Nani Palkhivala is justifiably referred to as the man who saved the Indian Constitution. Many of you know about Stephen Pleasonton, the US State Department clerk, who in August 1814 hurriedly stuffed the original Declaration of Independence and the US Constitution in coarse linen bags and carried them away from Washington DC hours before British Troops burned the city. Palkhivala’s role, did not involve linen bags and the timely escape from gutted government buildings. Nevertheless, it was no less heroic. In a case titled Keshavanand Bharati that spanned several weeks of hearing, Palkhivala persuaded the Indian Supreme Court to adopt the theory of basic structure. This singular contribution to global jurisprudence by the Indian Supreme Court ensures that core traits of the Constitution cannot be abrogated even through constitutional amendments. While the basic structure doctrine sits well in jurisdictions that allow judicial review of statutes, it has a resonance in other systems as well. The doctrine fosters respect for core constitutional values and a culture of constitutionalism. The pre-eminent value of constitutionalism is the people’s faith and belief in the supremacy of the Constitution. This is the cardinal value. As we work towards deepening democracy, we have to abide by basic tenets, continuously, without which we will miss our freedoms and the protected spaces that enable us to flourish as open societies. Historically, the 1978 Sri Lankan Constitution as amended by the 19th Constitutional amendment in 2015 had Article 33(1)(a). This article as it then stood imposed a duty on the President to ensure that the Constitution ‘is respected and upheld by all organs of Government’. These were important words because they unequivocally required the highest constitutional functionary to promote constitutionalism. In refashioning Article 33(1)(a), the 20th Constitutional Amendment appears to have dropped these weighty words. Indeed, for an overseas observer relying on an assortment of websites to access the definitive constitutional provisions as on date, I noticed a game of constitutional ping-pong, with provisions dropped and restored. Since the text of the Constitution is extremely important, the fundamental duties, specifically Article 28(a) requires for every person of Sri Lanka to uphold and defend constitution and the law. The choice of words, ‘every person in Sri Lanka’ was interesting for its contrast to a corresponding Article 51A of the Indian Constitution. The Indian Constitution imposes the duty on ‘every citizen’ to ‘respect the Constitution’. As a visitor to Sri Lanka and a citizen of India, I am currently under a moral and civic obligation to defend two constitutions, a responsibility I happily assume. I do so since constitutionalism is our best bet to navigate the turbulence of a complex world and transit to a fulfilling future. Constitutionalism has both positive and negative attributes. It has a close cousin in constitutional morality. Indeed, both these expressions are elastic, and at their core are but pathways to securing dignity for individuals and betterment for the community in a just and fair manner. The political scientist and constitutional commentator Pratap Bhanu Mehta identifies a cluster of characteristics linked to constitutionalism and constitutional morality. He writes: “I [have] suggested that constitutional morality refers, instead, to the formal virtues of a constitutional sensibility: (1) Self-restraint, (2) respect for plurality, (3) deference to processes, (4) scepticism towards authoritative claims of popular sovereignty, and (5) a commitment to an open culture of criticism that lies at the heart of constitutionalism.” Dr. B.R. Ambedkar who chaired the drafting committee of the Indian Constitution and was its principal architect, referred to the historian George Grote (pronounced Groht) when addressing the Constituent Assembly. Grote who had studied Athenian democracy emphasised ‘the diffusion of Constitutional morality’ not merely amongst the majority but throughout the whole community. This was an indispensable condition of government at once free and peaceable. The Indian Supreme Court speaking through Chief Justice Deepak Misra in the celebrated Navtej Singh Johar case (which decriminalised same sex relationships) has an eloquent perspective on constitutionalism. If I may be permitted a lengthy quote. “122. The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object. The idea is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights and other freedoms. However, it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution. 128. It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.” The Nobel Laureate Amartya Sen in his study The Idea of Justice (2009) explains what Constitutionalism is not. As many of you might know, Matsya in Sanskrit is a fish and Nyaya is justice. Sen writes: “Early Indian legal theorists talked disparagingly of what they called Matsyanyaya, ‘justice in the world of fish’, where a big fish can freely devour a small fish. We are warned that avoiding Matsyanyaya must be an essential part of justice, and it is crucial to make sure that the ‘justice of fish’ is not allowed to invade the world of human beings.” – (page 44, The Idea of Justice) This brings me to the role of Bar Associations. They have a vital societal obligation in educating the community and advancing constitutionalism. In South Korea, a constitutional crisis erupted in December 2024 when President Yoon Suk Yeol declared martial law and attempted to dissolve the National Assembly, a move that struck at the heart of the country’s democratic framework. In the face of this extraordinary challenge, the Korean Bar Association (KBA) acted swiftly and unequivocally, issuing a public statement condemning the President’s actions as both unconstitutional and a grave assault on the rule of law. The declaration of martial law triggered a massive wave of civil protest. International organisations such as LAWASIA also joined in expressing deep concern, underscoring the broader regional and international consensus on the need to uphold constitutional processes and protect human rights. Facing immense domestic and international pressure, President Yoon rescinded the order within hours. Ultimately, South Korea’s Constitutional Court confirmed the dismissal of President Yoon Suk Yeol, upholding his impeachment and marking a decisive affirmation of constitutional supremacy over authoritarian overreach. President Yoon Suk Yeol is currently serving a 7-year prison sentence, which was upheld by the Supreme Court of South Korea a few days ago. Allow me a word of praise for the Bar Association of Sri Lanka. The leadership demonstrated by President Rajeev Amarasuriya builds on the work of so many distinguished past presidents including my dear friend Upul Jayasuriya. BASL has risen above politics, to project a stand founded on principles and values. My great regard for President Amarasuriya has soared as he navigates through the constitutional equivalent of the Straits of Hormuz. The position taken by BASL as recorded in its communication of 25th May 2026 to His Excellency, President Anura Kumara Dissanayake is unexceptionable. Marshalling facts regarding the increase in the cadre of judges in the Court of Appeal and that of the Supreme Court, BASL noted that there was no workload justification for extending the retirement age of the sitting judges of these courts. Constitutions are not to be amended merely because the government of the day commands the requisite numbers. The perception that the real reason for extending the retirement age is distant from working norms and efficiency, is apt to erode public trust and confidence. Public trust is earned and built over decades through the work of individual judges and the collective output of the judiciary. An independent Bar that maintains an open channel of communication with the public is a vital safeguard against assaults on an independent judiciary. An independent Bar has a keen sense of potential dangers that loom. The Sri Lankan public deserves outstanding judges known for their independence and impartiality. Today, BASL is justifiably concerned about tinkering with the retirement age, absent any immediate justification. I join my distinguished international colleagues, Mr. Steven Thiru, President of the Commonwealth Lawyers’ Association and Mr. T L Yap, President of LAWASIA in both commending the Bar Association of Sri Lanka for its courageous and principled stand and call on the authorities to pay heed to the BASL. In the Indian experience, invoking the basic structure doctrine, the Supreme Court has consistently struck down amendments to the Constitution that impacted the independence of the judiciary. In the absence of constitutionally mandated judicial review, Sri Lankan society is best served by an open and transparent consultative process before any ad hoc piecemeal amendments are pushed through. Recall the title of Nani Palkhivala’s book I mentioned: “Our Constitution Defaced and Defiled“. Surely, the people of Sri Lanka deserve better than a piecemeal and ad hoc amendment that defiles the constitutional scheme and possibly impairs the independence of the judiciary. President Amarasuriya correctly mentioned that the Bar Association of Sri Lanka is guided by principle and conscience, not the political winds of the day. May I suggest a third factor which I will call the “Smell Test”. The Bar Association, comprising so many experienced and venerable practitioners has a keen and well-developed instinct refined over decades. When something “smells wrong” as it does at this constitutional moment, citizens have a reliable guide in BASL. The Bar Association knows something is amiss – something that compromises the independence of the judiciary and the rule of law. The move to amend the Constitution by extending the retirement age of superior court judges fails the Smell Test. With the help of the Bar Association of Sri Lanka and with the help of its independent judiciary, a culture of constitutionalism is taking hold. Its roots are sinking deep. The poet, Yasmine Gooneratne has a memorable set of lines: There was a country where fine poems lay close to the surface. Under every hedge each passing shower would bare a glittering edge.

I am confident that here in Sri Lanka every passing shower of constitutional challenge will reveal the glittering edge of constitutional values and fidelity to the rule of law. (Concluded)

Address to the Bar Association of Sri Lanka on 11 July 2026 by SHYAM DIVAN Senior Advocate, Supreme Court of India