14 July, 2020

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Need For A Referendum 

By Rajeewa Jayaweera

Rajeewa Jayaweera

Political developments in usually slow-moving Sri Lanka, between October 26 and November 14 was a rare exception. Matters moved rapidly after the dismissal of Prime Minister Ranil Wickremesinghe (RW) by the President, his replacement with a former President Mahinda Rajapaksa (MR), Prorogation and subsequent dissolution of Parliament, announcement of General Elections on January 5, dissolution stayed temporarily by the Supreme Court, reconvening of Parliament and loss of NCM by the new government all happened in less than three weeks.   

Vociferous protests have been made recently of anti-democratic measures. Therefore, it would be useful to recall some of the glaring undemocratic acts besides deviations from principles of good governance since January 9, 2015. 

President Sirisena, minutes after taking his oath of office, committed his first anti-democratic act by swearing in RW backed by 60 MPs as Prime Minister replacing a sitting Prime Minister supported by 144 MPs. Where were defenders of democracy demanding a vote of confidence or a ‘floor test’? Even the Ven. Sobitha Thero who gave leadership to the good governance project by his silence endorsed it. 

It was followed by the dismissal of the Chief Justice with a letter, informing his appointment two years earlier was not lawful. Once again, defenders of democracy remained silent.

One is compelled to ask, were these acts constitutional and in the spirit of good governance? Democracy and constitutionalism are for all times and not for selective application.

The COPE investigation into the Central Bank bond scam came up with much damning evidence against the Governor, an RW protégé, but President Sirisena dissolved parliament on the eve of the release date of the report as the findings could have impacted parliamentary elections which were due. Those howling over the dissolution on midnight of November 9 were in slumber. 

In the run-up to Parliamentary elections in August 2015, President Sirisena announced he would not appoint MR even if his group secured the highest number of seats. This announcement might have influenced voters, cost MR’s group some votes and impacted the difference between 95 and 106 MPs. Those who lament today of lack of democratic spirit remained silent.   

Since then, good governance has gone South. Investigations into murder and corruption have been stalled due to political interference. Senior staffers in the Attorney General’s Dept. have been prevented from carrying out a thorough cross-examination of some VVIPs during the PCoI hearings into the bond scam due to political pressure.  LG elections were delayed for over two years. Six Provincial Councils are currently under Governor’s rule. 

These are but a few of the many anti-democratic self-serving acts by the Sirisena-Wickremasinghe government, voted into office to correct Rajapaksa misrule. Most protestors, foreign envoys who remained silent for three years and local proxies of international NGOs who sing for their supper did little or nothing. 

Being a layman, how this writer understands this issue is that President Sirisena has acted based on powers vested with him under Article 33 and its sub-clauses in the Constitution. RW and others argue on the basis, contents of Article 33 may not be interpreted in isolation but in conjunction with Article 70 and its subclauses which restricts Presidential powers.  

Republics with an Executive Presidency (i.e.USA, France) are Presidential democracies whereas countries with an Executive Prime Minister (i.e.UK, India) and a Monarch or Constitutional President amounts to Parliamentary democracies. Accordingly, in countries with the former, people’s sovereignty is exercised through the President whereas, in the case of the latter, it is exercised through the Legislature (Parliament or National Assembly). 

Nevertheless, it is paramount to remember, under both systems Presidents, Prime Ministers and elected representatives are but only trustees of people’s sovereignty which is inalienable. 

People’s sovereignty vested with President Sirisena on January 9, 2015, has been passed on to Parliament by way of the 19th Amendment without the concurrence of the people. It was an ill thought out, hastily prepared and purpose designed amendment with no consideration of its long-term effects. The primary objective being preventing another MR presidency, it overlooked the lack of provision for situations when the heads of the Executive and Legislative branches are no longer able to work together resulting in a deadlock. Judging by the version given by President Sirisena, their differences had reached a breaking point.

The doctrine of Separation of Powers is perhaps best articulated by French political thinker Charles de Montesquieu(1689 – 1755), in his book ‘The Spirit of the Laws’ (French: De l’esprit des lois) first published in 1748. 

According to Montesquieu’s dictum, in a Republican constitution, the power of the people lies with the President and supreme power is in the hands of the people, not, as in a Parliamentary democracy, in the body of the people. The representative body ought not to exercise the executive function, because it is not suited to it. The legislature ought not to be able to arraign the person entrusted with executive powers, for this would turn the legislature into a body with arbitrary powers. The executive officer ought to have a share in the legislative power by a veto over legislation, but he ought not to have the power to enter positively into the making of legislation. The executive should have the power of calling and fixing the duration of meetings of the legislative body. In this way the executive branch will be able to prevent the encroachments of the legislature on its authority, thus ensuring that the legislature will not become despotic. 

In the British Westminster system, the power resides with the Monarch as do all aspects of governance. Hence it is Her Majesty’s Royal Navy, Air Force, Army, etc. The Queen has the power to both suspend and dissolve Parliament besides refuse to give royal assent to laws. However, by convention, she will act on the advice of the Prime Minister.

In the Sri Lankan context, Sovereignty lies with the people and is entrusted to the President to uphold. Therefore, all state power flows from the President. All executive arms of government from the armed forces, police, civil and diplomatic services are the prerogative of the President. It changed with the enactment of the 19th Amendment.

Ill effects of the 19th Amendment of making the Executive President answerable to parliament are being felt today whereas a more suitable option would have been an Executive Presidential system like that before the 18th Amendment with term limits or a Westminster styled government with a Constitutional President acting on the advice of the Prime Minister. Yoking of the two systems has plunged the country over a political precipice. 

President Sirisena claims he offered the premiership to both the Speaker and Deputy Leader of UNP who had declined. Because of his inability to work together with RW any longer, his third attempt was to offer it to MR. His modus operandi in resolving the challenges he faced leaves much to be desired and has made him vulnerable to severe criticism and condemnation.

A more pragmatic approach would have been to use his Presidential prerogative to address Parliament and explained to legislators of actual instances when RW had exceeded his powers, some of which are in the public domain. The most recent is RW’s offer of the East Container Terminal to the Indians. Having done so, he could have requested the House for a 2/3 vote to dissolve parliament and revert to the people for a decision. If declined by Parliament, he could have appealed directly to the people by way of calling a referendum. Instead, he chose a path undemocratic in nature and not in the spirit of good governance. 

RW and the UNP could have sought the intervention of the Supreme Court earlier but opted to first take up the issue with foreign envoys in Colombo seeking support from the international community and prolonging the nation’s agony.  

Whatever the apex court’s final decision will not bring a stable government. 

A decision upholding the dismissal of RW and his cabinet will see the return of MR’s government. A struggle between President Sirisena and the Rajapaksa clan for the 2020 Presidential poll is bound to follow. The economy would suffer.   

A decision against the dissolution will see RW’s return Prime Minister. An administration in which the President and Prime Minister are unable to work together will be disastrous for the economy unless RW steps aside. A move to impeach the President may not be to RW’s liking as his chances of winning a Presidential election against MR are questionable.  

As a solution to the current deadlock, the appointment of a member of the UNP other than RW as Prime Minister would be more feasible. 

Even though both sides have voiced their intention of passing a resolution to dissolve parliament immediately after the current deadlock is resolved, the danger of failing to muster a 2/3 majority vote is real.  Pension Rights of 55 sitting MPs in jeopardy is a significant factor. It will also require the UNFF, SLFP, and SLPP to cooperate, a rather tall order.

In democracies, citizens express their dissatisfaction of governments through elections. Delaying lesser elections, due between Presidential and parliamentary elections, is never a good idea as people tend to find other avenues to express their dissatisfaction. Some of the recent strikes were genuine expressions of frustration which at some point could turn ugly. The UNFGG / UPFA alliance, formed to oust the Rajapaksa administration should not have stayed on with an insufficient majority in parliament. It paved the way for MR’s return to the political fray. The country is in a political deadlock. The economy in is in shambles. 

Parliamentary elections is an absolute necessity. 

Therefore, a safer route would be a Referendum allowing the People state if they approve the dissolution of parliament and hold a general election.

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Latest comments

  • 8
    1

    A general election through a Referendum when the Constitution does not permit the President to dissolve Parliament? Mr. Jayaweera, you have obviously not read the Constitution. A binding referendum can only follow a Bill passed by a 2/3 majority in Parliament (Article 85). Where is that Bill, Mr. Always Anti-Ranil Jayaweera?

    Article 86 permits a non-binding Referendum. President can ask the people whether they wish a constitutional amendment permitting the President to dissolve Parliament at any time. But that will have no legal effect. Sirisena will have to go to Parliament and get a 2/3 majority for that.

    Sirisena cannot ask the people whether or not to dissolve the current Parliament now. That will be in violation of the present Constitution. How can the President ask the people for permission to violate the Constitution? Even if the people say ‘yes’, that is not equivalent to a constitutional amendment.

    Oh! Come on Mr. Jayaweera! Constitutions are serious stuff. They are not for “I know the law” guys or for “I no the low” in this case.

    • 2
      6

      This is not about constitutionality moron. This is about what the country needs. This parliament cannot go ahead and a general election is an absolute necessity as the author says.

      The only reason UNP morons bring topics like constitutionality, democracy is because you fear RW would be defeated. You would rather keep a malfunctioning parliament than making the country stable.

    • 1
      3

      Pol Science istudent
      *
      ” A binding referendum can only follow a Bill passed by a 2/3 majority in Parliament (Article 85)”
      *
      Why was no referendum held for implementation of 19A? It was overcome by playing with words for which all our politicians are good at.
      *
      Considering the situation in the country, the People opting for an Election is a foregone conclusion which only a few like your good self will not accept.

    • 10
      1

      I say ………. bring back Prabakaran …….. when he was around we had only one problem ………. now we have all these problems! ………. Can’t rule ourselves; referendum or no referendum

      Only imbeciles and Sinhalese think that a referendum will solve any of our problems ……… we will have so many problems that require so many referendums ………. A referendum in the morning a referendum in the evening …….. 365 days n

      Prabakaran is the best thing that ever happened to the Sinhalese-unity ………. alas what did they do? In true Sinhalese-wisdom they killed the goose that laid the golden egg!

      Well, the decent thing to do ……….. is for Sirisena to resign and have a presidential election.

      Then again decency and Lankans are mutually exclusive ………. so we go round and round the mulberry bush ………. referendum here we come …….. referendum here we go ………….

      • 7
        0

        Nimal F,
        Good suggestion! Yes, bring VP back, since the Brits are not likely to come back. Or even better, the IPKF.
        What good will a referendum do when most voters are imbeciles mesmerized by charlatans? Universal franchise has failed.
        We should have something like the Grade 5 scholarship exam to qualify voters to vote. Otherwise we will keep electing jackasses like Prasanna Ranaweera and Vermin Silva to Parliament.

    • 0
      0

      In LANKEN context, we need to avoid HOLDING referendums.

      People are not political literate. There are printed and visual media within the country that paint the picture only in favour of Rajaakshes for some hidden reasons.

      There will be dire consequences, if the analysts would not be able to advise the leadership NOT to go for a referendum. Effect would have been similar to JANAMATHA wichcaranaya in 1978.

      So, what is being outreached to the masses are not the facts, in today backdrops, but precalculated news transfers.

      How can people be with the criminal parties if Speaker and policists that gave him protection are being attacked by heavy materials thrown to them.

      Entire world is watching but TOTALLY difffernt picture is being painted by LOCAL media int he country.

      In any unbiased realities, we regardless any parties, should stand against CRIMEs and crime promotions.
      Not giving space rascals to dominate this nation.

  • 6
    1

    Rajeeva,
    You asked a good question which is: where were defenders of democracy?
    By asking this question you are agreeing that Mahinda Rajapakse is always not a defender of democracy, otherwise he is an anti democrat?
    Where were you all when Ranil appointed as PM? The parliament was there. Courts were there. Why you all didn’t ask the same question in 2015? Did you go to the courts? If not why?
    You are Rajapakse defender, you don’t bother about elections. Why can’t you wait for another year? Why you are in a hurry? Are you afraid Rajapakse will be jailed that?

    • 1
      3

      It is because gamaralas, and baiyyas thought im 2015 my3 got a mandate and MY3 can appoint his own PM. So gamaralas bowed down to people’s mandate. But in 2018 suit boot toyyaa can’t respect mandate but hide behind constitution or democracy

    • 1
      3

      Ajith
      *
      I have never said and never will say MR or any of his cohorts are defenders of democracy. On the contrary, I have written to the contrary on a few occasions.
      *
      I also did highlight the vaporization of DM Jayaratne and Mohan Prieis using methods good governance champions promised to do away with before 9 January 2015.
      *
      I wonder if you did the same?

  • 5
    1

    “Therefore, a safer route would be a Referendum allowing the People state if they approve the dissolution of parliament and hold a general election.”

    safer route? what the hell id he talking about….you mean to avoid blood shed inside the house of parliament?

    call a referendum first …then call a General Election?

    if the people reject the dissolution…call a General Election
    if the people accept the resolution all is ok?

    what a stupid logic..

  • 6
    2

    MS does not care about the country. He is doing all this mess.he must be punished by God.

    • 2
      1

      critique – Gamarala Sillysena will be punished by his boss Medamulana Meeharaka Percy Mahendra Rajafucksa.

  • 1
    2

    MS cares about the country and hence the dissolution of the Parliament.
    I entirely agree that the best course of action now is a Referendum.
    The case for a referendum has been well presented.
    We DO NOT NEED the West to tell us what do to.

  • 2
    0

    What Rajeewa Jayaweera is saying here is “We are left with having to choose between two bad lots”.
    Except for some slow learners, most of us have concluded that the bloody lots just want power for the sake of it. They do not care two hoots about the people, safeguarding religion or language.
    .
    Ask a random sample of Lankans anytime anywhere for a frank opinion of the governance. The response will be “Both are same”. This will be near unanimous. The sample will add “We do not want both. We want a new party to emerge”.
    .
    A referendum will only prolong our agony. Besides there will be blood all over.
    By the way Rajeewa: SLPP will introduce the language/religion-divide and win ANY referendum. Such a win will do nothing!

    • 0
      5

      K.Pillai
      My point is, the entire narrative has been hijacked by UNP and SLFP/SLPP supported by smaller parties.
      *
      The People who they represent has been taken out of the equation. Let them have their say direct rather than leaving it to their elected reps. I am not totally convinced, either of the main parties will opt for a general election if the imbroglio is resolved.
      *
      The Constitution does not permit a binding referendum without a prior 2/3 vote in Parliament. That is like consulting a Soothsayer who is the thief’s mother. If people vote for a general election, Prez. whoever the PM and all MPs must give their assent.

  • 1
    1

    why should we have a referendum with the colossal expenses involved.

    • 0
      1

      To solve the crisis ending the current instability because it is a huge economic cost. The cost of a referendum is very very small compared to the cost of this prevailing instability.

      • 0
        0

        sach

        then we are playing into the hands of the people who created the instability.

  • 4
    0

    Rajeewa: Learn to be FACTUAL and INDEPENDENT. The opposite to that is SLAVERY and a SLAVE. In raising the question: Why Ranil was appointed PM on January 9, 2015 by President, you have chosen to be a SLAVE. Ask you own “MASTER” why that appointment was allowed to go uncontested? Immaterial to say that Rev> Sobitha too kept quite. Who had the MAJORITY at that time in Parliament and didn’t that MAJORITY know the election held was a “Presidential” and NOT a “Parliamentary”. Having read your FIST FEW facts presented, I chose not to express my opinion on “Referendum”; because it would be like pouring water on a Duck’s Back.

  • 3
    0

    Dude you are one of a kind. The worst hypocrite who is cunning and deceiving by nature. In the two prior articles you were voicing about how the constitution being trampled by the crooked politicians and now abruptly changed your music back to how people were silent in the past. Dude two wrongs dosent make a right.Looks like finally the freebies have arrived at your door step and thus your tune has changed. That is just your Lankan mentality. Giving excuses, finding others at fault for your sins , singing for your master are your true qualities.Your pretend like a freelance intellectual and do the bidding for the crook.You also pretend like a patriot but actually a Pseudo nationalist. Readers please refer to last few articles written by this fake .

  • 0
    0

    Rajeewa why MS appointed RW back in 2015 with the support of only 60MPs was because he didn’t want to give RW a thumping majority by calling for elections soon after the Presidential Elections. Again, that was an undemocratic act and RW was the victim back then as well. You thought Mahinda could have shown his majority and continued after being humbled by a humiliating defeat?

    You keep washing Rajapakshe/Sirisena dirty loin, people can see your blind loyalty to the destroyers of democracy. You are in the same boat as that Bar (Tavern) Association low-yer ‘You Are’

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