By Jayadeva Uyangoda –
Last Friday, Sri Lanka’s President Maithripala Sirisena sacked Prime Minister Ranil Wickremeinghe and appointed Mahinda Rajapaksa, his political rival until the day before, as the new Prime Minister — a surprising move that Mr. Sirisena made in order to resolve a deepening political dispute between himself and Mr. Wickremesinghe. But this act has only pushed Sri Lanka into an unprecedented constitutional crisis, beginning a potentially dangerous phase of an on-going three-cornered power struggle among three leaders.
At the centre of the crisis is the lack of clarity as the new Prime Minister seems to have been appointed without a constitutionally valid vacancy for the position.
Crux of the issue
The constitutional provision that Mr. Sirisena has cited in the official letter to Mr. Wickremesinghe does not grant the President authority to remove a Prime Minister from office. Section 42(4) of the Constitution merely enables the President to appoint a PM. The President has taken the position that since he is the appointing authority, he also has the implicit power to sack the PM. The PM is not a public servant who can be sacked by the appointing authority at his will. It is a constitutional office with protection from the executive. This is the crux of the constitutional dispute.
The entire operation of altering the composition of the government seems to have been executed in a great hurry and in secrecy. There is also lack of clarity whether Mr. Sirisena’s letter (removing Mr. Wickremesinghe) had actually reached him by the time Mr. Rajapaksa was sworn in. This has led some commentators to call it a ‘constitutional coup’.
The position by Mr. Wickremesinghe aggravates the seriousness of this constitutional dispute. Dismissing the constitutional validity of the presidential action, he has argued that he still commands a majority in Parliament. His line of argument is that only Parliament has the constitutionally sanctioned authority to decide whether he could continue in office as PM or not. It also suggests that as long as there is no no-confidence motion passed in Parliament against him and the cabinet, his position as PM cannot be invalidated by the President at his will.
Mr. Wickremesinghe has also cited the fact of having defeated a no-trust motion brought against him a few months ago, and that situation, of Parliament’s majority expressing faith in him, remaining unaltered.
The argument seems to have derived its salience in the context of the 19th Amendment to Sri Lanka’s Constitution, passed in 2015 under the joint political leadership of both Mr. Sirisena and Mr. Wickremesinghe. It curtailed powers of the President under the 1978 Constitution (the original) as well as the 18th Amendment passed in 2010. Among the presidential powers taken away by the 19th Amendment, which is valid, is the one pertaining to the President’s powers over the PM.
The 19th Amendment, which created a dual executive, made the PM’s position secure from the arbitrary actions of the President. Thus, the office of the PM falls vacant only under limited circumstances. Death, voluntary resignation, loss of support in Parliament, rejection by Parliament of the budget, and ceasing to be an MP are these circumstances. Sacking by the President is certainly not in this list.
By this change, the 19th Amendment has also restored the Westminster framework of relationship between the head of state, the PM, and Parliament.
All these make the constitutionality as well as democratic legitimacy of the actions of Mr. Sirisena less than clear.
An argument put forward on behalf of the President is that when the United People’s Freedom Alliance, which was a partner in the so-called unity government, informed the Speaker last Friday that it was leaving the ruling coalition, the cabinet automatically stood dissolved, thereby creating a vacancy for the office of the PM. This is not an argument derived from any explicit provision of the Constitution. It is merely a political argument. What it does is no more than confirm that the composition of the coalition government was altered. It does not automatically lead to the loss of constitutional validity of the cabinet and the position of the person holding the office of the PM.
Mr. Sirisena’s address to the nation on Sunday did not clarify the constitutional issue at hand. He cited political and personal reasons why he could not partner with Mr. Wickremesinghe as the PM. But his assertion that he acted fully in accordance with the Constitution is only a claim. It awaits clarification. What is in dispute is not the total breakdown of relationship between the two leaders, leading to a collapse of their coalition. What is in doubt is the constitutionality of a series of actions by Mr. Sirisena on Friday. And if they are valid at all, they set a bad precedence for future constitutional governance in Sri Lanka. Contrary to the letter and spirit of the 19th Amendment, no PM will be secure in his/her position against arbitrary dismissal by the President. These circumstances also warrant judicial intervention to resolve the constitutional doubt.
Amidst this, the political dispute between the new coalition (Sirisena-Rajapaksa) and the Wickremesinghe led-United National Party (UNP) has now reached a stage of open confrontation. Mr. Wickremesinghe has refused the leave the office of PM as well as the official residence in Colombo. Speaker Karu Jayasuriya has written to Mr. Sirisena demanding that the rights and privileges of Mr. Wickremesinghe be protected, “until any other person emerged from within Parliament as having secured the confidence of Parliament”. The Speaker has implicitly acknowledged that Mr. Wickremesinghe is still the constitutionally legitimate PM.
Obviously, Mr. Wickremesinghe and the UNP want to take the battle to Parliament where the UNP feels that it can secure majority support. Meanwhile, Parliament has been prorogued by the President till November 16. As the numbers stand at present, Mr. Rajapaksa does not enjoy a majority in Parliament. The time left ahead will give Mr. Sirisena and the new PM enough time and space for horse trading. Ranged against this formidable combine that has been consolidating its grip on state power and institutions since Friday, are Mr. Wickremesinghe and the UNP who have only limited options — testing his floor strength, bringing a motion against Mr. Rajapaksa, and political defiance. He can also go to the Supreme Court.
If the UNP does so, the Supreme Court, which has been on a path to regaining its institutional independence and autonomy, will be called upon to adjudicate over a very sensitive power struggle among top politicians. The days ahead could be trying time for the judiciary as well.
The other side
Meanwhile, in planning his next moves for political survival, Mr. Wickremesinghe should also realise that he is partly to blame for the political imbroglio. His inability to establish a stable working relationship with the President to run the coalition government, casual disregard for the popular mandate he and Mr. Sirisena jointly won in 2015 for corruption-free governance and politics, lackadaisical attitude to constitutional reform and reconciliation, and gross neglect of popular demands for better economic governance have severely eroded his popular standing.
The biggest political irony is this. The collective failure of Mr. Sirisena and Mr. Wickremesinghe to be faithful to the 2015 mandate has now brought Mr. Rajapaksa back to power on the invitation of one party in a coalition which dislodged him from power.
Whatever turn the crisis may take, Sri Lanka’s fragile process of democratic recovery is in peril.
Vanguard / October 30, 2018
Dear Professor Uyangoda
The UPFA claims that there are ‘123’ MPs in support of the new Prime Minister , if so then there is no issue. We shall have to wait and see, however if they have been mistaken.
Sri Lanka is not a democracy, it has not been for a long time. If you remember the 2005 election where Mr. Wicramasinghe lost through certain undemocratic events that took place in which voters were prevented from exercising their democratic rights.
I think brother Wimal has also reminded us of the unconstitutional manner in which Mr. Wicramasinghe was made prime minister in the first place.
We can hope that the 2020 parliamentary elections will solve the issue. Democracy is messy, and that democracy means instability and that no one gets what they want. The alternative are the ultra- stable dictatorships of Singapore and Malaysia – they have done quite well, despite or perhaps because of their stability, which, incidentally, President JR attempted to create here in Sri Lanka.
“Dictatorship naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme liberty.” – Plato
Professor, can we hope for a brighter future under democracy?
Dinuk / October 30, 2018
Uyangoda, this is all stale news.. Time to say bye to Bondscam Ranil who has failed the long suffering people miserably!
Time has come for elections not horse-trading and we hope JVP wins big! Both Ranil and Mahinda Jarapassa should be banned from holding any office or running for elections. There should be a age limit of 68 for ALL elected politicians. Time has come for the younger generation to take over and clean up the mess made by the corrupt present generation of doddering intellectually and morally bankrupt politicos.
Also, Ranil has been playing Constitutional and de-limitation games these past 3 years to distract people and keep the country DIVIDED. The New Constitution process, endlessly dragged on has kept the country DIVIDED and become a legitimacy clause for the bi-partisan UNP-SLFP/PP corruption racket that turned parliament into a Cesspit of corruption.
The “New Constitution” show ardently supported by various Colombo NGOs with endless conferences and foreign Xperts on Constitution-making is part of the problem, rather than solution to the crisis in Lanka, the root of which is the political culture of corruption, impunity and immunity for financial crime and hate crimes by politicians.
Bondscam Ranil turned parliament into a Hub or Cesspit of Corruption with duty free SUVs and foreign trips for the politicians under the guise of national reconciliation or fake reconciliation, while protecting Mahinda Jarapassa family from corruption investigations. While this circus was on-going Sri Lanka was being asset stripped and sold off to Bondscam Ranil’s foreign friends- Washington, Japan, India, China etc.
Mallaiyuran / October 30, 2018
That is an explanatory one.
” Whatever turn the crisis may take, Sri Lanka’s fragile process of democratic recovery is in peril. ”
Well, if Karu is not able to convene the parliament in next two or three days, all have to just wait until the Nov, 16th. There seems to be no other possibility for any progress.
Unlike New King’s past one year’s (Possibly from PCOI in May 2016?) continuous maneuverings to dislodge his political enemy Ranil, whatever happens on the next parliament sitting, good or bad, may stick on for some time.
When Sirimavo won the 1970 election one guy wrote in Daily News an Obituary notice for Democracy. If he is alive, probably he may send another message to print as birth announcement of autocracy on October, 26th 2018.
kolla / October 30, 2018
In a real democracy after the breakdown of the SLFP/UNP coalition there should have been an election for a mandate from the people. If the 19 amendment does not allow it it is an undemocratic amendment and must be amended .
Similarly, in any real democracy when the hand picked Governor of the Central bank ( intimate friend of PM)and his oily son in- law carry our a massive racket with bonds and then bribed all and sundry in the government ranks including the Finance Minister, and the Governor is now a fugitive from justice, PM who appointed him , defended him , protected him , should have either gone for an election or resign.
In this context a President getting rid of a very tainted PM is not a matter of surprise.
Mallaiyuran / October 30, 2018
Under advent of 19 A, provided both parties pledged a common manifesto for the mandate from people to form a National Unity Government, or had released a deed for public purview of their firm intention of going bound into a National Unity government, and they won on that manifesto or by that deed, then latter broke up on policy differences, that give situation to one to say that the government stands dissolved. 19A recognized that kind of governments and promise given under 19A could be said as legally acceptable, so the parties could be held to honor the promise or resign. UNP and SLFP did not submit one manifesto. They agreed only on one issue i.e. “No Leader, No, Commander, No Soldier will be prosecuted”. New King was committal and Non-Committal in the election. He said as he is the President, he would not be able to campaign for anybody. Then he was one appointed Old King as the Campaign Chairman of SLFP, hoping that he would bring a victory to SLFP. This was his first open trust breaking after Jan, 2015. Latter he said some censure- castigation words of Old King and praised UNP behind the scene. None of them can be held as serious election campaign. They stood separately for the election. After election, somewhere in September, they wrote a private deed to form a National Unity Government for one year. This was expired in 2016. But they kept telling lies about the deed but continued the unity government without any agreement. 19A, the half-baked amendment, did say anything about this. I thinking somewhere in Feb 2017, they came out with new deed. I believe that is for two years. But, irrespective of any internal deeds, from the start (Jan 2015) they both parties have promised to people that will maintain the National Unity Government under any circumstances. Now, after coup they stand separated.
I am not sure if anyone of them can be held responsible for this public trust breaking.
Sunil Dahanayake / October 30, 2018
Dear Professor Uyangoda,
The general meaning of this article is that you want RW to come back. That is your democracy.
But people of Sri Lanka had enough of this “Boru Talk “Yahaplanaya” and future tense talking (always talking about the future. But did not achieve any thing) RW’s economic strategies and development. I hope that you may have read the yesterdays stock market indices. It shows that there is no crisis of this change. It shows that the country could be established politically, socially and economically by removing this RW and current government.
Somapala / October 30, 2018
Please do not lecture us from your ‘job’ in a third grade university in a corner of wild Australia. You are not an expert that we care.
Ramesh / October 30, 2018
Rajapakshe will not forgive my3 for back stabbing him in the last presidential election. He has collaborated with my3 now in order to capture the power but he will wait for the right time to dump my3.
mike / October 30, 2018
Ramesh – I concur. Medamulana Meeharaka the murderer, rapist and thief etc. will ensure that Gamarala Sillysena goes six feet under!
Lank a / October 30, 2018
We must put an age limit on PM & Presidential posts.
That is good for the country .70 is right age and above that no one should have right to contest in these posts .?
So; these old men go home.
New leadership will come.
nalmen / October 30, 2018
i do not know whether siras actions are constitutional or not as various vieuws are expressed on the subject but one thing is clear ranil brought it on himself by not keeping to his promises
what has happened to his one million jobs?has any financial crook been put in jail?
like wijedasa et al many more will cross with the many carrots being offered and it wont be a surprise if he loses his majority on the 16th
Rabok / October 30, 2018
Uyangoda – The architects of 19th amendment were not aiming at establishing democracy in this country – but to handover the power to Ranil (who already had failed 32 times to win an election) and keep him in power forever – Since nobody was sure about the ability of UNP and it’s leader’s to win power, they cunningly select innocent looking MS(who was daydreaming to become PM under MR)as their common candidate and supported him to win the election – I think MS even could not believe that he had become the king and was ready to listen to all behind his victory – Ranil and 19th amendment architects had long term plans and happily let MS to fly high and gently push him to make Ranil the PM when there was a sitting PM with a bigger majorit obtainy in the Parliament – which was bloody unconstitutional – where were you the Uyangoda ? – The most constitutional way would have been to call general election immediately after Presidential election and prove his majority in the Parliament . Then Uyangoda / Ranil clan drafted the 19th amendment and use all cunning manipulation under the sun to push it through Parliament. MS being such a tactless idiot pushed his party idiots to vote for it. MR could not do much – Look at one of the bloody clauses in that cunning document (19th Amendment) – If the government consist of one party it can have only 30 Cabinet Ministers – However if it is a coalition the Parliament have the authority to have any number of Cabinet Ministers – what a BS clause is this ? – simply allowing the coalition partner to do horse trading with Cabinet Minister posts or Deputy or Rajya (bloody BS) – Uyangoda show me
your sincerity in drafting these amendment – Do you really want to believe that you were sincere about democratic aspects of the amendment – NO
Mallaiyuran / October 31, 2018
” but to handover the power to Ranil (who already had failed 32 times to win an election) and keep him in power forever ” If you want to say something balanced, you have to compare and contrast 18A and 19A. Now all what you are doing is justifying a Prime Suspect, who could find a place, trying to hide in the “Cabinet” .
Plato. / October 30, 2018
The Srilankan constitution is rather vague for it to be interpreted by so many for and against on the issue at hand.Lets hope that the new constitution still on the drawing boards would be specific without leaving room for loopholes.Anyway ,apart from the constitutional interpretation on this issue the fact remains that the President did not receive the mandate at the Poll on Jan:08 2015 to do what he had done last Friday.
I wonder who gave him the Dead-Rope or could it be that he was under threat or blackmail?
Would MaRa keep quiet if and when he loses out on the vote in Parliament in the next few days?
Coming colours not good either way !