By Austin Fernando –

Prorogation has a history. All our Presidents have prorogued Parliament. An unforgettable prorogation was proclaimed by President R Premadasa after his impeachment. The chilling austere address by him in the Parliament afterward is vividly remembered. It was a great example of how to use prorogation to rid of political instability. In the recent past prorogations were connected to hiding the Central Bank Bond Scam, duty reduction scam for sugar importation, etc that had been critically discussed in political circles.

Institutionally, the most affected by prorogation is the parliamentary Committee on Public Enterprises (COPE), Committee on Public Accounts, etc which dissolve automatically, causing hiding inquired financial irregularities, though Parliament has total financial authority under Article 148 of the Constitution. It is correct to say that those who then opposed prorogation over hiding financial irregularities do not take such stances now, due to political fraudulence. Hence it can be said that sometimes prorogation is a crooked political subterfuge.

Proroguing has happened even now. I mention a failed prorogation, which was unknown not only to the public but in detail even to the then Prime Minister (PM) Ranil Wickremesinghe because it was political subterfuge.

Although President Sirisena signed the prorogation proclamation and sent it to the Government Printer, a reference number was allocated to the Gazette Extraordinary, though tri-lingually drafted, the gazette was never published. What happened was the Sinhala draft was completed, and the Tamil and English drafts were being proofread. Recently when I queried on this gazette from the Government Printer, quoting the reserved number, a lady officer said there was no such gazette, and doubted whether I had a wrong number!

Political trickery!

The gazette was blocked under a different political background.

With President Maithripala Sirisena winning the presidential elections and assuming leadership of the Sri Lanka Freedom Party (SLFP) the United Peoples’ Freedom Alliance (UPFA) split. A political organization, Sri Lanka Podujana Peramuna (SLPP) was initiated. There was a legal constraint for them to represent in Parliament under the SLPP tag since they contested the parliamentary election in August 2015 under the UPFA. Nevertheless, they attempted to make Mahinda Rajapaksa the Leader of the Opposition. In this background, they planned to field candidates at the Local Government (LG) Elections under the SLPP.

Local Government Election Motivator

The LG elections were held on February 10th, 2018. There was a delay in holding elections due to legal revisions. Immediately after the dissolution of LGs former President Mahinda Rajapaksa launched an intensive and organized political process. It was to grab the former UPFA LG members into his grip. Wide organized publicity was given to this, and most political groups that supported him at the presidential election were tagged on.

The United National Party (UNP) and the SLFP were engaged in Yahapalana Regime national politics. Mahinda Rajapaksa supporters were involved in local politics. Finally, when candidates were selected experienced, politically active, public-spirited, and well-known candidates were included in Mahinda Rajapaksa’s lists. President Sirisena had to nominate some novices for the election since seniors were gone. In a way obtaining 12% with such candidates is an achievement.

At the election, the new Front won 3,436 representatives polling 5,006,837 votes. The UNP won 2,433 slots polling 3,640,620 votes. The Janatha Vimukthi Peramuna won 434 slots polling 710,932ක් (5.75%ක්) votes. The Tamil National Alliance with 337,877 (2.73%ක්) polled won 417 representatives. Some who analyzed these results conceded that the potential to gain 52% in a presidential election for the former UPFA was visible.

Since criteria such as personal popularity, race, caste, religion, relationships, etc influence voting at LG elections, and the potential for such being considered at a presidential election is less, there is reason to believe that the conclusion arrived above could be illogical; but the cumulative percentage reflected the strength of the Alliance. However, Mahinda Rajapaksa would have thought of the possibility of mobilizing the balance of 8% using psycho-motivators such as racial, religious, warmongering, etc. There were clergy, war heroes et al who could publicly orchestrate such.

Slashing Ranil Wickremesinghe’s neck!

This thinking developed a big crisis in national politics. Concurrently a group intimate to President Sirisena and belonging to the SLFP and UPFA launched a project to save their parties from the UNP Alliance. The above-mentioned electoral results were a motivator. They intended to expel Ranil Wickremesinghe from the premiership and appoint Mahinda Rajapaksa in place. It is a cunning political subterfuge. Those who were involved have become his erstwhile acolytes now! Some even his senior Ministers! Politics is such talent!

The process was of several steps. Pressurizing to remove Ranil Wickremesinghe from premiership after the LG election was planned. It is well known that a group of intimate politicians (UPFA/SLFP) of the President was behind it. The then Attorney General and I intervened with President Sirisena and prevented it from happening. I must say our intervention was as responsible senior state officers and not for any gain personally. However, it must be told here that there were issues between the two leaders.

The best example to pinpoint is the Central Bank Bond Scam. The President publicly hinted that the Premier attempted to continue with Arjuna Mahendran as Governor of the Central Bank, irrespective of wide publicity in the media and political circles as directly connected to the scam. The President was extremely stressed about this. While addressing the Nation on 28th October 2018 in a complaining tone he said that when he was to visit the Central Bank the Premier inquired about his visit, and when he arrived at the Bank Arjuna Mahendran was present with a sheaf of betel to receive him. Incidents like such were collecting in the conflict with the Premier.

Bilateral Policy Conflicts

Though not directly related to prorogation I am reminded of policy conflicts. They were the reason for the culmination of later conflicts. One related to revising land laws. A draft copy of the revision was sent to the President by the Prime Minister, for observations. It was good ethics. It was an attempt to revise the law considering land as a commercial good. Advisor WJS Karunaratne and I discussed with the President to draft his observations. The President rejected the proposal.

President Sirisena who hailed from a colonist family under Parakrama Samudra, who had as a child ran around the harvested paddy lands, bathing in the canal waters, thought that the proposal would motivate colonists to sell their lands underhand, and squat on state lands, becoming a social evil. He thought Ranil Wickremesinghe hailing from a pedigree unconcerned of such complaint did not possess such aspirations.

The President intimated his protest to the Premier in writing. On President’s instructions President’s Secretary PB Abeykoon, Advisor WJS Karunaratne, Additional Secretary Thalatha Upulmalee, and I explained to the Premier the President’s concerns. In his address to the Nation, the President stated that the Cabinet Memorandum was awaiting approval.

Proroguing solution!

In a hidden, but continuously “invading” and “pinching” policy environment, the President would have considered an “underhand” move by proroguing the Parliament after the LG election results were announced. This was one week after the election results were announced. I do not think this was his solo decision. He discussed with me, only the preparation of the gazette notice. I was surprised.

Without questioning him I said “Wonder whether you discussed the proroguing with your political partner -the Premier and the head of the Parliament- the Speaker”

“No, had I told them they would have objected.” It is deception. It conveyed a message.

To convince the true repercussions I said, “Is not it no good for an Alliance government? Another thing is it conveys wrong messages to foreign countries, investors, tourists, political commentators”

However, he was unprepared to listen to me. We have observed in the past and present that he was no exception to behave so. It will be so in the future too. With the post Presidents, Premiers, Minister, et al become all-knowing Sarvagnas!

I was ordered to prepare the gazette notification. I could not intervene over his constitutional authority.

I went to Paget Road presidential residence with the gazette notification. I requested him to reconsider the prorogation before signing. It failed. He signed the gazette. My maximum interventions did not bring positive results. Wisdom, reasonable thinking, and practice are lost. I sent the gazette to the Government Printer.

Half an hour later I received a telephone call from the President.

“Did you send the gazette for printing?” I confirmed it-“Yes.”

“The Premier and Speaker came to see me. I told them I have prorogued the Parliament. They tell me this is not an appropriate time to prorogue. Because investors, tourists’ arrivals will be affected. Can you stop printing it?”

Half an hour back I told him the same. My interest also is to hold it. I had no politics for it.

Proclamation Order by the President

Having told Gangani Liyanage, Government Printer that I was coming to correct a mistake in the gazette, I rushed to the Government Printer’s Office, with my assistant WADH Kanchana.

As soon as I reached there, I took over the originals of the signed Proclamation, the covering letter from my office, and all other relevant documents. The gazette in Sihala was ready for printing. The Tamil and English versions were been proofread. I informed the Government Printer that printing is unnecessary. I took to custody a Sinhala copy of the gazette. It was expected to be published under number 2058/ 51 on February 18th, 2018.

Since without the Tamil and English versions the gazette cannot be published, and my taking over required documents, proroguing did not happen. I haven’t heard of such an event happening earlier. Not read either. I have heard only of repealing after publishing. In current parlance “reversing!” There are historically noted persons for it! Why name them? For information, a copy of the unpublished but printed Sinhala version of the Proclamation is shown below. The Tamil and English versions were not published after proofreading.

As I entered my car, I telephoned the President and said “Everything is alright.” He said “Good”, but of course in a defeated tone. The embarrassment facing those who advised him would have been on top of his mind.

Lessons learned

There is a lesson to be learned about the episode. Erskine May, the specialist on parliamentary tradition states that in British practice and law propagation is the prerogative of the Crown. In our Constitution, it is the President under Article 33(2)(c). Though this discretionary power has been given to the President by the Constitution, since the government established in 2015 was an alliance, I believed that the Indian and British practice was more appropriate.

Manual of Parliamentary Procedures in the Government of India (Section 17.2.3 Prorogation) states “After obtaining the approval of the Cabinet Committee on Parliamentary Affairs to the proposal to prorogue the Houses, or either House, the Government’s decision is conveyed to the two Secretariats or concerned Secretariat of Parliament to enable them to issue the Order of the President and to notify the same in the Gazette of India” Hence the procedures enjoin some check on the President’s authority given in Article 85(2) for proroguing. Even the Queen follows the advice of the Prime Minister.

I inquired whether the PM and Speaker were consulted thinking that in an alliance, whatever is written or unwritten in law, ethically may require such consultation. In short, the most important lesson is that even the President should use discretion carefully, though he could possess provision or authority to act. Though I am not a constitutional expert, I note the quoted experience that power endowed should not be executed without checks and balances, with messaging for future reference if required. It is not to overshadow Erskine May or any other constitutional expert.

The hint I received was that this prorogation was motivated by emotional impulse without wisely considering its consequences. The estrangement that was developing between the President and PM would have been the base for it. The President who did not tolerate the PM’s distanced behavior on policy (e.g., Land, Trade Agreements), and operations (e.g., Bond Scam, the appointment of the Governor of Central Bank) would have used prorogation as the austere message to convey that although the PM had the parliamentary power, Executive is the leader in decision making.

Here, the influence I had as a public officer was limited. Prorogation is a political decision. Simply and directly viewed the President has only executed his legal and discretionary power. Discretionary power is an act dependent on such an officer’s decision and conscience; but if used arbitrarily, hypothetically, and unreasonably it is abuse. I pray that when this power is used by a President or any official in the future let this principle be reminded.

However, the President on representation made by the PM withdrawing the proclamation immediately proved that irrespective of what the Constitution authorized, consultation caused careful judgment. If this consultation continued during the Yahapalana regime the political upheavals that followed would have been minimized. We undergo the pain of it even today.

Having considered the Indian and British experiences we proposed constitutional amendments through the “Collective for Reforms”, to obtain at least the concurrence of the Prime Minister/ Cabinet before the President proclaims proroguing, but it has fallen on deaf ears.

The Parliament is prorogued now. It is too early to publicize true intentions of prorogation. The most crucial and direct reason could be the need for the new President Ranil Wickremesinghe to address the Nation through the Parliament. He must do it since he can forewarn the public regarding the enormous task before him and the dire consequences people will have to bear. It is essential since he has to take the people along with him for any reforms dictated by the IMF or any other.

The hidden and indirect reason crucial for some other officials (formerly in the Central Bank, LITRO, Ceylon Electricity Board, et al) could be the happy and thrilling facilitation given by prorogation to close and dissolve negative, corrupt, and irregular exposures at the Parliamentary Committees such as COPE, where Chairman Charitha Herath had been attempting to bring character and discipline to those concerned and involved, truly keeping to his name Charitha! On that count, who is irritated with these Parliamentary Committees? Most likely it could be those who gain personally and politically.

However, I would be happy if the ethics of discretion are respected by authorities.

*Austin Fernando – Former Secretary to the President