Colombo Telegraph

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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