By 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.