16 July, 2019

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Democracy Hijacked; By Whom?

By Raj Gonsalkorale

Raj Gonsalkorale

The political impasse continues in Sri Lanka, and the country has virtually come to a halt. The economy, which was in a perilous state before the dismissal of Prime Minister Wickremesinghe, very likely would have worsened now. The rupee continues to slide and price of goods are rising in line with the rupe depreciation. 

So, while Sri Lanka is burning, metaphorically, our Nero’s are fiddling.

For the good of the future generations of the country, it is time all Nero’s took a step back and took stock of the damage they are doing to the country by their fiddling.

It is time President Sirisena, Mr Mahinda Rajapaksa, Mr Ranil Wickremesinghe, and Mr Sampanthan by whatever titles they wish to call themselves, and Speaker Mr Karu Jayasuriya sat together along with other party leaders, and worked out a solution to the political impasse in the country and stopped the bleeding that is going on now.

The dismissal of Mr Wickremesinghe as Prime Minister has not been challenged in the only forum where it can and should be, the Supreme Court of the country. This gives one the impression that this act was constitutional or those affected believed it was so. This is just a logical view and not a constitutional view as Mr Wickremesinghe himself, as the injured party, should have challenged this Presidential decision in the Supreme Court if he thought it was not constitutional.

The following clauses in the 19th Amendment to the Constitution appears to confirm that the Presidential decision was constitutional

46 (2) The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution 

46 (4) Notwithstanding anything contained in paragraph (1) of this Article, where the recognized political party or the independent group which obtains highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by Parliament. 

(5) For the purpose of paragraph (4), National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups. 

46 (2) seems to state that if a cabinet of ministers’ cease to function, then the Prime Minister ceases to hold office

The Sri Lankan Parliament approved the formation of a National Government on the 4th of September 2015 after the UPFA led by the SLFP and the UNF led by the UNP signed an MOU. So in effect, until the UPFA withdrew from the MOU on the 26th of October 2018, a National government existed in the country. Correspondingly, the National government ceased to exist once one party to the two party MOU withdrew from the MOU. Logical?

If there is no government, one cannot have a cabinet. Logical?

And, as per clause 46 (2) the Prime Minister ceases to hold office if there is no cabinet. Again, logical?

Then the President has to appoint a new Prime Minister and ask him/her to form a cabinet, and hence a new government

The President did so as per clause 42 (2) and appointed Mr Mahinda Rajapaksa as the new Prime Minister. 

42 (4) The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament

This clause has been badly worded as it does not specifically and unambiguously require the Prime Minister so appointed, to seek a vote of confidence in the Parliament. The words “Presidents opinion”, “most likely” are neither here nor there and the onus is on those opposed to the Prime Minister and the government to move a vote of no confidence consistent with Parliamentary procedures and practices. There is no ambiguity about exercising this option.

In the current situation, the President has taken a stand that the vote of no confidence on Prime Minister Rajapaksa has not been done in conformity with standard Parliamentary procedures and practices.

So, the impasse continues.

What possible conclusions, and possible paths to end this impasse might ordinary laymen and women come up with?

Firstly, the constitutionality of Presidents dismissal of the Prime Minister. If it wasn’t, why has the former Prime Minister not sought redress from the Supreme Court? A logical question?

Secondly, in the absence of such a challenge, the corresponding constitutionality and the legality of the government of Prime Minister Mahinda Rajapaksa. 

Thirdly, the need to ascertain whether the vote of no confidence moved on Prime Minister Mahinda Rajapaksa was according to standard Parliamentary Procedures and processes. The fact that it was rushed through is common knowledge and the guardian of the Parliament, the Speaker, appears to have allowed himself to be rushed, giving impartial observers the impression that he had shown partiality.

The writer has not commented on the Presidents dissolution of Parliament as it has been challenged before the Supreme Court and a stay order issued until the 7th of December. 

What does the writer think what our leaders should do now? Here is a five-point plan.

1. Allow the people of the country to be the arbitrators and give them the opportunity at a general election to decide who should govern the country.

2. The leaders mentioned at the outset, President Sirisena, Mr Mahinda Rajapaksa, Mr Ranil Wickremasinghe, Mr Sampanthan, and Speaker Mr Karu Jayasuriya and other party leaders represented in Parliament to agree on a date for a general election, preferably to be held within 3 months

3. Allow the current government headed by Prime Minister Rajapaksa to function as the caretaker government till the general election

4. Agree that during this period, no new Parliamentary bills are taken up except if required, a vote of accounts, and no new Executive decisions are taken by the President unless approved by the leaders mentioned here.

5. During the period leading to the election, President Sirisena recuses himself as the President of the SLFP, and acts with utmost impartiality 

The immediate hurdle of ending the political impasse must take precedence over any other. The ambiguities in the constitution needs to be addressed, and clarity of intent established with the least possible need for interpretation. The powers of the President, Prime Minister and the Speaker needs to be spelt out explicitly, and all implied powers removed from the Constitution. What is needed is not a new constitution but a cleaner one without ambiguities and generalisations. If the country does not have the expertise to do this from within, we must do it from without, and seek assistance from those who are able to perform such a task. These matters however cannot take precedence over getting through the initial hurdle of ending the current political impasse. That is crucial and of paramount importance for the future well-being of generations to come. 

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Latest comments

  • 17
    3

    Mr R.G,
    “46 (2) seems to state that if a cabinet of ministers’ cease to function, then the Prime Minister ceases to hold office”
    If the cabinet ceases to function when one set of ministers leaves, then it should have collapsed when Ministers like Ravi Karunanayaka or Wijedase Rajapakshe resigned. This is specious reasoning. We all know that the intention of the 19th Amendment was to limit presidential terms power to dissolve parliament before 4 1/2 years. Never mind how the wording was botched by the drafters.
    Why on earth should Rajapaksa be even “caretaker” PM? His supporters in the House have already shown their thuggish behaviour even without an election.
    This is like telling a rape victim to live with the rapist until the court case is settled.
    You are free to wear your cloak of respectabiliy, but your vile intentions are clear.

    • 1
      2

      It is clear as to who had hijacked democracy, if you analyse using first principle. In August 2015 people of the country gave a mandate to a group to rule them for five years. This mandate can only be annulled under the following circumstances :
      1. The ruling group on their own decide to go for a fresh mandate from the people
      2. If some members of that group are not satisfied that mandate is not being carried out in a manner acceptable to them, due to which ruling group loses its majority.
      3. If after four and a half ears in office, President rightly or wrongly wants to get a fresh mandate from the people.
      First condition has not occurred and third one does not qualify for action.
      Regarding the second, some are saying that since certain members of the ruling group have withdrawn from the government, a fresh mandate should be obtained. Who are these people who left. They are members of SLFP, who were not part of the group which received the original mandate to rule the country. While those who received the mandate from the people, are still with the ruling group and are having majority support. President may have the right to appoint Prime Minister, But he has to appoint the person who has the support of the majority and not any one he wants. Therefore for president to dismiss the Prime minister who has the majority support and appoint another who does not have it is violating the basic principle of democracy. Furthermore to first prorogue parliament without any reason other than for horse trading to buy over members and subsequently when the desired result was not forthcoming to dissolve parliament is not acceptable to anyone who cherish democratic values. Those who are jumping out to defend the dastardly action of President are only doing so either as members of lunatic fringe or having personal agendas to fulfil or vendettas to settle.

  • 14
    3

    You make a good cheer leader for MR😊

  • 19
    2

    Raj Gonsalkorale,

    None of us were born yesterday ………… so please cut the crap ……… you as well as I know the exact motives of Sirisena and Mahinda in this insane nadagama

    Enough said …….. no need to waste any more words ………….

  • 4
    14

    The people of Sri.Lanka need an election to decide who they wish to have leading the country.
    Think we are past the point of name calling. It has been shown the present Speaker does not act in line with Parliamentary procedure, vide today’s vote of no confidence which was held ignoring the Constitution, Parliamentary Procedure and traditions which require written notice and time for debate prior to such a motion.
    Further, it seemed The Mace was not in the Chamber when the vote by name was called for by the Speaker.
    Footage of the subsequent fracas showed what looked distinctly like a knife in the hand of a UNP MP.
    I think it is time to change things and rid this Patliament of these men who,
    ‘Dress’d in a little brief authority,
    Most ignorant of what he’s most assur’d—
    His glassy essence—like an angry ape
    Plays such fantastic tricks before high heaven
    As makes the angels weep’ W Shakespeare

  • 6
    1

    Raj Gonsalkorale, yes, ‘Democracy’ in near ideal form has been hijacked.
    When? Probably when we went after our own version.
    We are in a territory of pirates.
    We have to choose between two baddys.
    .
    “Democracy Hijacked; By Whom?” Too late to address this.

  • 1
    2

    irrational.

  • 4
    1

    The writer in his own intention trying to white wash the taint acts of both the president and his caretaker government appointees. What you all need to ask is what is ethical and bona fide. President reiterate number of times his problem is working with RW and people with different sexual orientation and not the members of the national government. Therefore there is no need for him to adjourn or dissolve the parliament at the first place. He first needs to tell himself my personal problems are not that important when it comes to the countries problem. It cannot be mixed in anyway. There is no constitution required for this. Hence chaos situation what so ever arises as a result of this.

  • 3
    0

    RG; Why don’t you Form a Sane Political Party. You seem to be able to THINK!

  • 6
    1

    Raj Gonsalkorale, asks “democracy Hijacked; By Whom”?

    Sahodaraya, let me answer you question in Sinhalese so that our SINHALA POL BOORUWA’S understand:

    අපේ දුෂ්ට ජනාධිපති මෛත්රි, රනිල්, මහින්ද, බැසිල්, මහින්දගේ ඇම්බැට්ටයෝ සහ බල තණ්හාවෙන් පිම්බිච්ච, දේශපාලනිකව රට ආරජික තත්වයට පත්කරපු සිංහල පොල් බුරුවො! මහින්ද බලලුන් ලවා කොස් ඇට බාවා ගෙන ව්යවස්ථාවේ “අමතරව” යන වචනයක් නිර්වචනය කර රාඡ්ය බලය ලබා, විසුරුවාලීමට හැකිය යන්න දැන් හැම මහචාර්ය වරයම ඒක පතුරු ගහනව.
    යකො තොපිට ඔනේ ඔනේ දවස්වලට චන්ද තියන්න ඔනේනං අවුරුදු 4.5 ට ආණ්ඩු පත් කර ගන්නේ මොන ලබ්බටද?

    Let me translate in English. Brother, our terrible President Maithri, Ranil, Mahinda, Basil, Mahinda’s nitwits plus those power hungry politicians who have ruined our country with support of our Sinhala coconut donkeys (Pol Booruwa’s). Metaphorically speaking, Mahinda has succeeded in using the the cats paws like tongues to yank the simmering jack seed (Koss Atta) out from the fire. Now every professor is misusing the terminology by lacerating the constitution for their own masters’ benefit by misinterpreting the word “Amathara”. Apart from this, is it legitimate to have elections to anyone’s whim and fancy when a legitimate government exists that is still legal and their term has not expired the 4.5 year shelf life?

  • 1
    5

    MS has made an unlikely hero out of RW. Someone who managed less than 30% of the vote at the local government election, who has led the UNP since 1994 never being able to gain an outright win for the UNP, and losing on so many occasions, reviled by many including many of the commentators on CT before this fiasco, has now suddenly elevated as the saviour of democracy. If not for clauses 46(2) and 46 (4) in the 19th amendment, none of these would have been possible. Who was the author of the 19th amendment? Pandit Jayampathi. God save us if he were to draft a new constitution! High time the UNP changed the driver

  • 1
    0

    RG,

    As a previous respondent, ‘Old Codger’ has observed, “We all know that the intention of the 19th Amendment was to limit presidential terms power to dissolve parliament before 4 1/2 years.. Never mind how the wording was botched by the drafters” It was also the intention of the Amendment to remove the President’s carte blanche authority to dismiss a prime minister. Sirisena’s purported dismissal of RW as PM and the appointment of MR to that office were clearly against the letter, the intent and the spirit of the constitution. It is always a sign of a poor case when you have to resort to obscure provisions and to authority inferred from unrelated clauses, to justify your actions. And, please don’t bring this silly argument of ‘if what Sirisena did was wrong why was it not challenged in the courts?’ Often, there are very good reasons for not going to court but that does not mean what was done was right.

    Let’s not beat about the bush. Sirisena has acted improperly in this instance. And with each statement he has made he has shown himself to be untruthful and progressively more unconvincing. Perhaps he has been ill-advised but he has created a state of chaos and crisis.

    A man who acts imprudently and with reckless disregard for the possible consequences of his actions, must accept responsibility, if his actions set in motion, events which he cannot now control. Sirisena has shown himself unworthy of his high office. The decent thing to do is to go gracefully before he loses all credibility.

  • 0
    0

    R Gonsalkorala is a top most Mahinda Raja stooge. Beware.

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