By Laksiri Fernando –

Dr. Laksiri Fernando

The ‘dismissal debate’ has now turned into a ‘prorogation debate.’ The latest statement by liberal/left academics and professionals demands to revoke the President’s prorogation and call the Speaker to reconvene Parliament forthwith. The controversy over the appointment of a new PM has become quite stale perhaps, although some ‘experts’ still bat on.

The Speaker has agreed to allocate the Prime Minister’s seat (Agamathi Putuwa) to Mahinda Rajapaksa when he met the President on 31 October. This is a ‘de facto’admission of the constitutional position that the dismissal of Ranil Wickremesighe and the appointment of Mahinda Rajapaksa are legally valid or ‘recte valet.’

This dilemma about the PM’s chair probably is one reason why the Parliament was prorogued until 16 November, but obviously not the most important reason. The others reasons could be: (1) To buy time for the necessary crossovers. (2) To appoint a new Cabinet. (3) To announce and implement popular concessions to the people. (4) To formulate a new Budget or a Vote on Account. (5) To exhaust and drain the opposition with their arguments, protest and emotional anger.

Musical Chairs

In the Sri Lankan culture, including the political culture, one’s status or power is determined by the Chair one occupies! It is not easy to give this important seat in Parliament to two persons like what was done to the Kalawana seat under JR Jayewardene’s hegemony in 1981. Of course unless the constitution is amended like in the Second Amendment! That was one landmark of our constitutional reform process.

When the Speaker met the President, he has agreed to consider (salaka balanna) in reconvening Parliament before 16 November, although no firm promise was given. ‘Salaka balannam’ in Sinhala usage is a very vague statement. It is like waving the head both ways without committing oneself. This President is also a ‘cunning fox’ like JRJ, who was branded in that name by A. J. Wilson.

It is possible that the Speaker also conveyed to the President that the whole international community wants to see the Parliament is reconvened as soon as possible. That is a valid concern on the part of Western countries although they themselves prorogue Parliaments under similar circumstances. They have not clearly objected to the removal of Ranil Wickremesinghe or the appointment of Mahinda Rajapaksa as the new Prime Minister, although they have not yet greeted the new PM. The circumstances are understandable.

Fake News?

There are so much of fake news, miss communication or blatant ‘dead ropes’ given to the opponents. When the new PM was meeting with NUTA (not FUTA), there was a telephone call apparently from the Presidential Secretariat and when the PM came back to the meeting he commented that the Parliament may be convened on 5 November. However, this was not even technically possible as there needs to be three working days between the necessary gazette notification and the commencement day.

He probably was giving ‘fake hopes,’ not to that audience, but to the media. Because those university teachers were not at all interested in convening the Parliament.

Then again when a group of MPs met with the Speaker, it was announced that the President has agreed to convene the Parliament on 7 November. But that news became denied by the SLFP sources, while the President keeping mum. It has become extremely difficult to know who is telling the truth. Counting numbers also has become extremely difficult for the politicians. Apart from counting the required number in Parliament, counting the people who goes for a meeting or endorsing a resolution also has become difficult (118 or 109).

Mahinda Rajapaksa is famous for sarcastic or misleading comments. On the day the Prime Minister was changed, he has asked former Minister Harsha de Silva at lunch time in Parliament whether he would join him, saying that he is going to form a new government. Harsha has thought it was a joke, but became a reality by the same evening. Harsha’s father probably knows better of MR, as they were working in the same building, Sri Sumangala, upstairs and downstairs, at Vidyodaya in late 1960s. Former at Archives and the latter at the university library.

Understandable Anger

Some people were disturbed and angered when I said last Monday “Ranil Wickremesinghe holding on to power is unconstitutional and undemocratic.” I even received threatening and insulting emails. One sender was Kumar David, pretend to disbelieve I was the author.

However, when Reeza Hameed wrote “President is powerless to remove Prime Minister” (Colombo Telegraph, 13 April 2018), I argued to the contrary. My main points were the following.

[1] Interpretation of the constitution based on the ‘objectives’ of the drafters is subjective. [2] Whatever the ‘objectives,’ those cannot contradict the main thrust of the 1978 constitution i.e. the Presidential system without a referendum.

I also asked the following questions: If the absence of ‘removal clause’ in 42 (4) is deliberate, why it is present in Articles 47 (2), 47 (3) and 48 (1)? Do you think that the constitutional drafters must have thought the absence or not inclusion of ‘removal clause’ in 42 (4) is sufficient, whatever present in other articles? Do you admit that 19A is a messy and a bad piece of constitutional amendment?

Of course Reeza Hameed gave some answers. On his part, he has been fairly consistent. My point here is not about I was correct or he was wrong, but I have maintained this position at least since April, well before the present crisis that the President can remove the PM under certain circumstances.

Not the First Time  

Since January 2015, the President of Sri Lanka has used his powers three times in appointing the Prime Minister, one may say when it was required under the constitution, based on Article 42 (4). In all these instances, it was not clear whether the appointed PM would hold a majority in Parliament at the outset. The last two instances were after the 19^thAmendment and therefore it is difficult to argue that amendment made much difference in President’s powers in this respect.

However, there were political differences between these three instances. The first was after a presidential election without any change to the political composition of Parliament, nevertheless given the dramatic change of the election, there was no much political controversy. The second one was after a parliamentary election and the appointed PM was the same as before and again, there was no much political controversy.

However, this time it was not after any popular election, presidential or parliamentary, and therefore there is much confusion and controversy, although it was after the collapse of the National Government. This is something not very familiar to the country although it is defined in the constitution after the 19^thAmendment. When a National Gvernment collapses, the Cabinet becomes dissolved, including the PM and the President is empowered to appoint a new PM and a new Cabinet.

An Example from Australia

The controversy is because of the unexpected and the dramatic nature that it had happened apart from its secretive or ‘conspiratorial’ nature. Such dramatic changes have not been uncommon in Westminster model democracies as well. Among many examples, the dismissal of the sitting Prime Minister, with even a majority in Parliament, was enacted in 1975 in Australia. For easy reference I am quoting from Wikipedia. However there are many books written on the subject.

“On 11 November 1975, [Prime Minister Gough] Whitlam intended to call a half-Senate election in an attempt to break the deadlock. When he went to seek [Governor-General Sir John] Kerr’s approval of the election, Kerr instead dismissed him as Prime Minister and shortly thereafter installed [Malcolm] Fraser in his place.”

That was also called a constitutional crisis. Jenny Hocking (‘The Dismissal Dossier,’ 2015) in her award winning biography of Gough Whitlam, reveals the astonishing secret story of the planning, the people and the collusion behind the removal of the sitting Prime Minister, Whitlam.

However, Whitlam did not resist, did not claim he is the Prime Minister or did not refuse to leave the official residence. Within a month, the election was held and Fraser returned with a massive majority. The Parliament was not prorogued but dissolved! Now our constitutional pundits claim that the President even cannot dissolved Parliament and it requires a two-thirds majority. People may have to very carefully look at the anarchist 19^thAmendment and look for alternatives.

Story of Ranil

Although I supported the January 2015 change with much hope, I did not support the UNFGG at the August 2015 parliamentary elections, because of the bond scam in between. After the first bond scam, I was extremely critical of Ranil Wickremesinghe. Those were expressed in my articles, although I am not usually a person to refer to my past articles or claim I said so. Therefore, no one needs to get upset about my last article about Ranil and his adamance in holding on to power which can create much harm to the country.

In August last year (2017) I wrote “Remove Ravi and Investigate Ranil” after the Bond Commission Report. In November I wrote “It’s Time to Go Ranil.” These are clear enough reasons for my positions on the evolving scenario. I have always expressed my opinions as an independent person without aligning with any group or clique, let alone a political party.

Once Asanga Welikala (CPA) invited me to be part of an email network of left minded people to see how the Left Movement could be rejuvenated! I declined the invitation and was most surprised to see why and how Asanga was initiating it! I could respect for his views but not as a left minded person.

I still strongly maintain that Ranil Wickremesinghe and the UNP are planning a major disaster to the country. According to the ‘Economy Next’ website (3 November), he has said “We will be calling on our people not to resort to violence. But you don’t know what arises in a situation like this. A few desperate people can start off a bloodbath.”

I leave the readers to figure out what he was saying. He was referring to his own people.

Call for General Election

Yes, there is a risk of violence, a major disaster and clashes. The best measure to avoid such a situation is for the five main leaders, Maithripala Sirisena, Mahinda Rajapaksa, Ranil Wickremesinghe, R. Sampanthan and Anura Kumara Dissanayake to come to the table and, in my view, to agree for a general election to be held as soon as possible, probably early December.

The Parliament could be convened to approve a Vote on Account before 16 November, but then dissolved. Ranil Wickremesinghe can reside at Temple Trees.