By Rajan Philips –
The Supreme Court picked a Thursday, 13 December, to deliver its long anticipated ruling after seven weeks of Fridays that saw the government of the country stumble from one level of illegality to another. The Court ruled unanimously that the dissolution of parliament by the President is unconstitutional and illegal – that the President’s proclamation to that effect is “null, void ab initio and without force or effect in law.” The aftereffects have been swift and smooth. Mahinda Rajapksa resigned yesterday after another judicial setback on Friday when a divisional bench of three judges unanimously refused to stay the Quo Warranto hearing in the Court of Appeal, while allowing (with one of the three Judges dissenting) the appeal against it to proceed for hearing in mid-January. Rather than continuing as PM in a legal limbo and facing public wrath for an impending government breakdown, the former President chose to relinquish his demoted and controversially appointed position as Prime Minister. His technically illegal government also stood down.
On Sunday, at 10:00 AM, Ranil Wickremesinghe is expected to be re-sworn in as Prime Minister. A hugely humiliated President Sirisena finally climbed down from his imagined plenitude of powers and has reportedly agreed to re-appoint Ranil Wickremesinghe as Prime Minister. Constitutional normalcy has been restored after seven weeks and weekends of confusion and turmoil. It would be quite a while before political normalcy could be restored, and even longer before the shaky economy is brought to even keel. Much will depend on how Ranil Wickremesinghe and ‘his’ new government will pan out over the next several weeks and months. But before we gaze into the ‘new future’ with Ranil Wickremesinghe, we must pause to celebrate the seven Judges of the Supreme Court and their unanimous ruling, but for whom no new future would have become possible.
The implications of the Supreme Court ruling are many. The unanimous ruling is proof that the judiciary has finally come of age in its independence after all the political monkeying that it had been wrung through for decades on end. Contrary to politically inspired speculations about a divided court and an uncertain verdict, the seven judges have shown their collegial and judicial abilities to reach a unanimous conclusion through consensual reasoning on a very controversial matter. All seven judges were appointed by either Mahinda Rajapaksa or Maithripala Sirisena, but the judges have validated former US President Truman’s timeless insight that executive presidents might think that their judicial appointees will rule in their favour, but almost always it never happens that way. In fact, it should never happen that way.
The ruling is a rebuke of presidential overreach. It is not a victory for the UNP or its leader. It is a victory for constitutional democracy, where elections are held not at the time of any sovereign’s whimsical choosing but at times and intervals stipulated by the constitution. Previous Supreme Courts too easily concurred with constitutional amendments and interpretations to manipulate the timing of presidential elections and terms to suit sitting presidents. Until the 19th Amendment, the timing of parliamentary elections was simply left to the President without any restraint, except the first-year-after-election restriction. The 19th Amendment took away the President’s arbitrary power of dissolution. The President was ill-advised that a textual or translation loophole in the constitution allowed him to dissolve parliament any time he wanted to. He foolishly tried it and has now received a public caning from the custodians of the constitution.
By his arbitrary dissolution of parliament, Maithripala Sirisena unintentionally created the time and space for much debate and the coalescing of arguments in support of the Constitution and against the President’s breach of it. The articulations in the Court were only a part of the debate. There were plenty more outside the Courts in the broader society. Never before, have legal luminaries, academics, scholars and activists joined a constitutional debate from the outside in such large numbers and over so many weeks. They stand gratified and rewarded by the Supreme Court’s unanimous ruling. Equally, those who spuriously argued in support of the dissolution, and others who irresponsibly advised the President who has been incapable of discerning good fruits from bad ones, stand isolated and disgraced for their intellectual dishonesty, thuggish threats and mischievous misinterpretations of the constitution.
The judgement delivered by Chief Justice HNJ Perera (with five Judges agreeing while Justice Sisira de Abrew provided his own reasoning for the same verdict) puts to rest many of the misconceptions about presidential powers under the constitution. They were really not misconceptions but artfully advanced political positions predicated on unrestrained presidential powers. Hopefully, the unanimous Court ruling will significantly delegitimize them even if it cannot totally eliminate them. The Attorney General and others supporting the dissolution raised two objections, one concerning the remedy that the petitioners against the dissolution were seeking, and the other questioning the jurisdiction of the court to adjudicate on a ‘political decision’ of the President. The Court gave copious reasons for dismissing these objections. The following are particularly instructive.
The Court found the submission on seeking remedy through impeachment “logically flawed … and a glaring non sequitur in the specific circumstances of these applications” for “the simple reason … that these applications challenge a dissolution of Parliament and a Member of a Parliament which is dissolved by the President without notice and literally overnight, cannot have recourse to Article 38 (2) because, at the time the applications are filed, no Parliament would exist in which a motion for impeachment can be brought. The Court also pointed that the submission is irrelevant to “the case of the Petitioners … who were and/or are not Members of the Eighth Parliament and, therefore, have no opportunity of bringing a motion for the impeachment of the President.”
The Court was even more emphatic in rejecting the submission that “the dissolution of Parliament does not constitute “executive or administrative action” falling within the purview of Article 126 of the Constitution … and the suggestion inherent in the submission … that the President, in his capacity as the Head of State, has a species of inherent unrestricted omnipotent power which is akin to royal prerogative power held by a monarch”.
The Court went on: “Since 1972, this country has known no monarch and this Court must reject any submission that carries with it a suggestion to the contrary. It is apt to refer to the decision in VISUVALINGAM vs. LIYANAGE [1983 1 SLR 203 at p.222] where Samarakoon CJ emphatically rejected the proposition advanced by Deputy Solicitor General that the President of Sri Lanka has “inherited the mantle of a Monarch”.” (Note: This was the “Saturday Review” Fundamental Rights case that, thanks to the creative genius of the late S. Nadesan QC, led to a full bench hearing on the sacking and reappointment of the entire Court by President Jayewardene over the Sixth Amendment. The then CJ’s ruling was on the latter case. This writer was one of the petitioners in that case, a relatively young one at that time.)
In ruling that the recent dissolution of parliament is unconstitutional, the Court exhaustively addressed the different submissions on the various Articles of the Constitution that pertain to dissolution. As the Chief Justice noted, the ruling “accords with the duty cast on this Court to read and give effect to the provisions in the Constitution so as to uphold democracy, the Rule of Law and the separation of powers and ensure that no unqualified and unfettered powers are vested in any public authority.” In the end, the Court addressed the tendentious justification for a General Election advanced as a pseudo-legal argument.
The Court could not have been clearer than in saying: “Giving effect to the franchise of the people is not achieved by the Court permitting a General Election held consequent to the dissolution of Parliament which has been effected contrary to the provisions of the Constitution. Such a General Election will be unlawfully held and its result will be open to question. A General Election will be valid only if it is lawfully held. Thus, a General Election held consequent to the dissolution of Parliament which has been done contrary to the provisions of the Constitution will not be a true exercise of the franchise of the people.”
Sweet and Sour Return
The Judiciary has taken the country as far as it could, and out of an unnecessarily created constitutional storm. The rehabilitation work is left to the Executive and the Legislature. The return of Ranil Wickremensinghe has its sweet and sour flavours. It is sweet insofar as it restores constitutional normalcy that was unnecessarily ruptured on 26 October. It is also sour because it brings into painful relief all the baggage that Ranil Wickremesinghe and his select band of Ministers had gathered over the last three years, promising everything and achieving little. That the little that was achieved – restoring the independence of judiciary and dismantling the state and non-state machinery that went about kidnapping and killing personal enemies and political opponents from May 2009 to November 2014 – is also huge enough to justify Ranil Wickremesinghe returning as Prime Minister.
At the same time, Mr. Wickremesinghe has a responsibility to demonstrate and to ensure that this latest stint of his as PM will be qualitatively different and not at all disappointing unlike the phase that, thankfully for him, ended on 26 October. Hopefully, Mr. Wickremesinghe is not thinking that he will restart from where he was in Galle, on 26 October, before Sirisena was abandoned by his sanities. As is commonly acknowledged, Ranil Wickremesinghe must take more than a fair share of blame for driving Maithripala Sirisena go nuts. Out of office for the last seven weeks, Ranil Wickremesinghe has been promising in his usual carefree manner of speaking any and all of: (a) entertaining a resolution to dissolve parliament; (b) to abolish the executive presidency; and (c) to bring in a new constitution. What he has not been clear about is how he proposes to navigate any or all of this in the current parliament.
All eyes will be on the ‘new’ cabinet of ministers that RW and Sirisena will be creating come next week, or even today. What will be its size? Who and who will be in it? Will Ravi Karunanayake be back as Minister of Finance, or even as ‘any Minister’? Will the bunch of SLFPers who were in the ‘Rajapaksa cabinet’ just last week until the Court of Appeal threw them out, be back in the ‘Wickremesinghe cabinet’ next week? The blame will all be Mr. Wickremsinghe’s, if it were to transpire that the upshot of all the weeks of protests and campaigns for democracy is only to reward the PM’s disgraced chums with cabinet placements.
The TNA will have a hard time selling itself, let alone others, the proposition that it should continue to prop up a government that includes Ravi Karunanayake as a Cabinet Minister. The JVP is all ready to support a No Confidence Motion against Ranil Wickremesinghe, because, as it rightly argues, Wickremesinghe’s UNP and Sirisena’s SLFP have betrayed the people’s trust given to them twice in one year, in 2015. The JVP wants an election, and so do the Rajapaksa forces. The only condition is that an early election can only materialize if Parliament passes a resolution by two-thirds majority asking the President to dissolve parliament. That is the constitutional position as affirmed by seven judges of the Supreme Court.
The task before Mr. Wickremesinghe is not to pretend that he has a new mandate to govern on an idiosyncratic agenda of multiple free trade agreements and a million jobs (forget the farmers), but to formulate a minimum program to build on the political gains of the last seven weeks and the constitutional clarity provided by the Supreme Court. Since a two-thirds majority resolution is needed for an early general election that both the Rajapksas and the JVP want, it also creates the opportunity to piggyback on that majority – either a minimalist or a maximalist constitutional amendment.
At the minimum new electoral laws, and regulations for caretaker government during the election should be put in place. As a maximum, it wouldn’t hurt to reach for the pie-in-the-sky and try to have the Executive Presidency seriously modified. It would be foolish for the country to persist with it in its current form after the experience with Maithripala Sirisena. The JVP has an amendment for it, but doesn’t know how to get it done. It will require the support of both Mahinda Rajapaksa and Ranil Wickremesinghe, just as much as their support is needed for an early election.
There is also a political advantage in openly exploring constitutional possibilities, in that it will force the Rajapaksa supporters to have their say in the open rather than spreading wild rumours in the social media that Ranil Wickremesinghe is somehow going to implement a federal constitution as payback for the TNA’s support of him. Not just the social media, for on Saturday in his resignation speech, Mahinda Rajapaksa elevated this canard about a new federal constitution as the main plank of his next election platform. The simple truth is that no constitutional reform is feasible or will be durable if it doesn’t have the support of the mutually disagreeing MS-MR-RW troika. The TNA leader knows this more than anybody else, and that is what he has been trying to accomplish all this while. He can only keep trying harder.