By Rajan Philips –
Alexander Hamilton, a founding father of the American Constitution, described the judiciary as the weakest of the three branches of government, because it carries neither the sword that only the executive wields, nor the purse that the legislature keeps. In the current constitutional circus in Sri Lanka, the judiciary is standing tall as the sanest and the most reliable branch of government. Last week three judges of the Supreme Court delivered a stunning rebuke of presidential overreach and ordered a stay on the President’s gazette proclamations dissolving parliament and calling for general elections. The order will most likely be affirmed with good and quite obvious reasons by a full Bench of the Court in early December.
Between now and December there is quite a breach for plenty of political water to flow. In the days after the historic Court order, parliament descended into chaos and the President has shown himself to be neither ceremonial nor executional. No astrologer can predict what lies ahead and even the stars above must be quite confused about the fortunes of their followers below. But neither the stars nor the skies are going to fall and in the midst of chaos there is still room for hope. It could have been much worse.
Fortunately for Sri Lanka, the President cannot wield his sword at will, even if he has one. It is truly remarkable, and hopefully it will remain so, that despite all the wild speculations and loose talk among a few political busybodies there has not been even a scintilla of a sign of implicating the army in the current political standoffs. Even those of us who fundamentally disagree with the politics of Gotabaya Rajapaksa and Sarath Fonseka, must wholeheartedly commend them for scrupulously demonstrating civilian solidarity in spite of their storied military backgrounds. The obvious wild card is of course the commander in chief, but even he should be quite chastened after the Supreme Court rap on his knuckles. The President is entitled to claim credit for facilitating the independence of judiciary, as he did immediately after the Court ruling, but he could have spared a lot of national bother if he had not occasioned the intervention of the Court in the first place.
The immediate aftermath of the Court ruling seemed to presage a fruitless standoff between parliamentary triumphalism and presidential intransigence. A quiet meeting between the Speaker and the President along with political party leaders before reconvening parliament may have ensured orderly proceedings in the legislature. That was not to be. Those who won their day in court understandably wanted to celebrate their win in parliament with a show of numbers. And the ‘current government’ that came into being through the work of the Government Printer publishing gazettes had no numbers to show even after two weeks of aggressive horse trading. To the gazette-government’s dismay, even the few who had crossed over with much fanfare earlier ceremonially walked back to the new ranks of the opposition in parliament. And the gazette-government of pseudo revolutionaries fell back on the ceremonial Mace and the Standing Orders to justify its survival after a voice vote of No Confidence.
The President wouldn’t accept the Speaker’s word for what transpired in parliament, but later cooled down to accepting a new resolution passed by a division of names, and minus the offending stricture against the President’s first gazette overreach. He has even conceded that it is the UNP-UNF (led by Ranil Wickremesinghe) that still has the majority in parliament. The gazette-government, however, is not prepared to concede anything. So it disrupted parliament for the second day, and the non-gazette opposition had to settle for a second voice vote of No Confidence against the gazette-government. Parliament is adjourned till tomorrow as the country takes its first weekend break without a Friday presidential surprise.
True to form, the President has again asserted that he will not reappoint Ranil Wickeremsinghe as Prime Minister, no matter what a majority of parliamentarians have to say. He has, however, promised not to prorogue again while calling upon the SLFP MPs to produce their own majority in parliament. What does that mean: a summons to SB Dissanayake to produce another fake magic?
And suddenly becoming a stickler for parliamentary procedure, Mahinda Rajapaksa has put out a list of a dozen or so steps that should be taken before Parliament can properly take up a No Confidence Motion against him. That will take everyone to Christmas and Santa Claus, and that seems to be the political stratagem of the Rajapaksa-Sirisena axis: delay and disrupt until deliverance comes through a general election that will be managed by the gazette-government to its utmost advantage with the utmost abuse of state resources.
What should be clear by now is that Mahinda Rajapaksa never had majority support in parliament (there is no other practical way of ascertaining if an MP appointed as Prime Minister “is most likely to command the confidence of Parliament”), and will never be able to show majority support unless he can find seventeen parliamentarians with the stomach to for ever suffer national wrath and ridicule even for half a million corrupt rupees as consideration for crossing over (again). The Rajapaksa gazette-government cannot even function as a minority government with a hostile opposition and an even more hostile public. The ministers who were signed up to take care of themselves in the caretaker government will be laughed out of their offices if they were to seriously pretend that they are administering the affairs of the state. How quickly have the tables turned? Mangala Samraweera and Kabir Hashim were chased out of Rupavahini by Rajapaksa supporters, and it could now be payback time for their gazetted replacements.
At the same time, the UNP/UNF alliance may have to rethink the practicality of reinstating its unconstitutionally ousted government. For starters, Sirisena will keep refusing to re-swear in Ranil Wickremersinghe as Prime Minister, no matter how many votes of no confidence parliament passes against Mahinda Rajapaksa. The only way to force the stubborn President would be for the no less stubborn Ranil Wickremesinghe petition the court that his dismissal is illegal.
The President is in a bind of his own making because if he were to remove Mahinda Rajapaksa now, Rajapkasa can turn around say that he is not going anywhere because the President cannot fire him under the 19th Amendment. GL Peiris and Sarath Silva will lose no time in egging Mahinda Rajapaksa to take the matter to the Court, something Ranil Wickremesinghe could and should have done immediately after October 26, the first Friday of presidential fireworks. Wouldn’t it be hilarious if Sirisena were to fire Mahinda Rajapaksa and Rajapaksa petitions the Courts for redress? There is more.
One of the improbable possibilities is President Sirisena saying enough is enough and resigning from office. Interestingly, the letter of resignation must be addressed to the Speaker. In the convoluted arrangement for succession, due to the absence of a Vice President or Order of Precedence, if the office of the President becomes vacant, the Prime Minister steps in as interim ‘President’ until Parliament elects by secret ballot one of its MPs to serve as President and complete the remainder of the term until the next Presidential election. In the current situation, which ‘Prime Minister’ will step in? Should Mahinda Rajapaksa be disqualified from stepping in as President because he has already served two terms as President? Put another way, should someone who has served two terms as President, be automatically disqualified not only from being President again but also from being appointed as Prime Minister to prevent him from becoming President through the succession route? Again in the current situation, which Member of Parliament is most likely to be elected as interim President? If it is going to be Ranil Wickremensinghe, wouldn’t it be poetic justice, albeit only of interim duration. Admittedly, I am being facetious because the whole presidency has become farcical.
Impeaching the President is out of the question because it will be virtually impossible to muster the requisite two-thirds majority to pass the final resolution of impeachment. However, if they want to be vexatious, the UNP/UNF could start an impeachment process with only half the members signing a notice of impeachment resolution including allegations and satisfying the Speaker that “the allegations merit inquiry and report by the Supreme Court.” The Court hearing if it were to eventuate at all will turn into an even more full blown circus than what we are having now with lawyers from all sides having the time of their lives to the cynical merriment of the public. Any impeachment initiative, in my view, will only puncture the huge political momentum that the UNP/UNF has had thrown at its lap entirely on account of President Sirisena’s bizarre antics. More importantly, an impeachment hearing will drag, as AJ Wilson said, “the Supreme Court into the maelstrom of politics” and only serve to trivialize even the currently exalted Court in the eyes of the people as yet another tainted political agency.
Election by consensus
Perhaps the most remarkable upshot of President Sirisena’s political misadventure is the mobilization of public opposition to his actions. I am not a crowd-scientist to conclusively say which side is drawing the larger crowds and in which direction are the political winds blowing. What I can say is that those who normally write at length about the crowds at the old bring-back-Mahinda rallies have gone quiet once the pro-democracy crowd started pouring on the streets. We would have heard an earful from them if the crowds first at Temple Trees and then at the Lipton Circle were not as impressive as they have been. More than crowd size, which side has the energy and the enthusiasm is what matters more.
“I am not here for Ranil, I am here for democracy” was the recurrent sign and tweet at the Temple Trees rally. “That is what democracy is all about”, Ranil Wickremesinghe gallantly retweeted. On the other side, it is all about Mahinda Rajapaksa and nothing about what he stands for, if he does stand for anything. The bring-back-Mahinda cry has lost its voice because he has already been brought back – not by the surging tide of public support, but through the back door by President Sirisena and his gazette. Can Mahinda Rajapaksa recapture the lost ground? Can Ranil Wickremesinghe sustain the momentum that has landed at his feet through no effort of his own?
The ultimate test will be before the people. General election is what the Rajapaksas have always been clamouring for. Now even the UNP is calling for not only parliamentary but also presidential elections. If there is any calculation behind this rhetoric it could only be that the UNP-UNF could field both Ranil Wickremesinghe and Sajith Premadasa at the same time as tandem (President-Prime Minister) candidates. That might be a hard pair to match for the Rajapaksas. Subject to what the Court might say in December, the only way to have a parliamentary election before the four and half year time limit is to pass a resolution in parliament with a two-thirds majority. Perhaps, this constitutional requirement could be the means to cut through the current impasse, if not the Gordian knot itself.
Getting a two-thirds majority will require consensus and common ground between the two opposing sides in parliament. The most obvious common ground would be to agree to have the election on a level playing field with neither side being able to take advantage of state resources. That would mean a caretaker government of minimum size and essential ministries, divided among all parties and ideally with Ministers who may not be contesting the next election. The Constitution allows a caretaker government to be without a Prime Minister. So Ranil Wickremesinghe and Mahinda Rajapaksa could be let free to campaign without the burden of prime-ministering a caretaker government. By the same token, President Sirisena should stay neutral in the campaign and mind the business of the state. The alternative is endless voice votes in parliament until the Supreme Court lays down new rules for parliament, the President and a new election. The Sri Lankan Supreme Court might be proving Alexander Hamilton wrong.
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