By Raj Gonsalkorale –
Laying down one’s life is even something an activist should be ready to do for the sake of safeguarding democratic rights. Leaders like Mahatma Ghandi, Nelson Mandela, Martin Luther King Jnr were ready to do that. Mahatma Ghandi and Martin Luther King did pay with their lives for fighting for what they believed in. All of them and many others who have fought for democracy had one thing in common. They practiced consistency. They were not selective about the issues they fought for and they fought for the same principles. Personal circumstances did not affect them, and change in such circumstances also did not change their principles.
Sri Lanka, and some of our leaders, politicians as well as civil society leaders and religious leaders, have not shown that consistency. There is at present a clamour for democracy on the heels of the action taken by the Sri Lankan President to dismiss Prime Minister Ranil Wickremasinghe and appoint former President Mahinda Rajapaksa as the new Prime Minister.
It is always a welcome development if the public clamour for democracy whenever they feel there is a threat to it. The public should show their displeasure whenever they are confronted with undemocratic practices. Sri Lankans however have not been consistent about this.
Amongst a few recent instances of undemocratic practices, there were no protests when former President JR Jayewardene obtained signed undated letters of resignation from members of Parliament of his party, the UNP after his victory in 1977, the very same party led by the very same leader was complicit in organising the infamous 1983 Pogrom against the Tamil community in Sri Lanka, and they have never been held accountable for that and there have been no public protests against the UNP. Prime Minister Sirimavo Bandaranaike’s civic rights were taken away by a Kangaroo court appointed by the government of President J R Jayewardena. There were no protests against this indecent act. The current leader of the UNP, who is a nephew of then leader JR Jayewardene, and who was a member of the cabinet of that government has never been called into account for his role in the infamous massacre of suspected JVP members in Batalanda and the public has been silent. The same leader, who as Prime Minister signed an agreement with the LTTE in 2002 without the approval of the Parliament or the Executive President of the country, and no one called that undemocratic, the same leader being appointed as the Prime Minister in January 2015 with only 46 members out of 225 supporting him was not called undemocratic or unconstitutional. There were no street protests by the civil society and no one called the President undemocratic then. The President and the Prime Minister entered into an MOU to form a national government although there was no mandate from the people for it as it was not placed before the voters during the general election of August 2015. No one protested. The Police unit formed to investigate high level corruption, the FCID, does not report to the IGP but to a Parliamentary committee headed by the Prime Minister. Is that democratic? Has anyone protested? These are only some instances of undemocratic practices which escaped the radar of the civil society and religious leaders of the country. No doubt there are many more.
In regard to the current situation and the alleged impingement on democracy, purely for purpose of argument, assuming if what the President did was constitutional, then what would be anti-democratic about it? At the apex of our democracy is the constitution, warps and all. The constitution is not very clear about many things, and when there is some doubt, democracy has a Supreme Court which is there to give an opinion or interpretation of something which is not clear. Unlike the UK, which apparently does not have a written constitution but practices democracy (their versions of it) through traditions and precedents, Sri Lanka does not have traditions as such and are governed by a written document.
Many are trying to understand why a constitutional act is undemocratic in a Sri Lankan context. No doubt there are countries which do not have democracy who have constitutions, so there need not be synonymy of the two, but in the Sri Lankan context, shouldn’t a constitutional act be democratic as well? If the constitution unambiguously said that the responsibility for appointing/selecting a PM was entirely the responsibility of the Parliament, and the President used powers he did not have, then such an act would have been unconstitutional and therefore undemocratic. This is not the case in Sri Lanka as the President still has substantial powers despite the 19th Amendment.
The flavour of our constitution is a muddle, and one can say it was not entirely democratic before the 19th Amendment as it conferred one person with enormous powers. The 19th Amendment addressed some of these nasty provisions, but because the exercise of people’s sovereignty is with the President as well as the Parliament, even now, there is, and as in the present instance, the President still has powers that ordinary lay persons have clue about.
If one were to say our constitution has undemocratic aspects and need to be addressed, that would be right. A new constitution framing process is ongoing and hopefully it will address some of the undemocratic practices that are impinging on the fundamental rights of all people. However, there is an anomaly with regard to the independence of this process as the steering committee on the formation of a new constitution is chaired by the Prime Minister. The more democratic process should have been for the Speaker of the Parliament to chair this committee to ensure the steering is not directed towards any particular opinion or party wish.
In regard to the current situation, if we accept that President acted unconstitutionally, Mr Wickremesinghe and the UNP have two choices, and they can exercise both if they so wish
1. Seek an opinion from the Supreme Court
2. Move a motion of no confidence on the new government
Both options would be very democratic. Street protests will not provide a democratic or a constitutional outcome.
Much has been said and written about the unconstitutionality and/or the undemocratic nature of the President’s actions. The author has no desire to challenge any of these views as the author has no legal knowledge or a background in law, and especially constitutional law although many who have written on this topic also do not have such a background either.
The following clauses in the 19th Amendment to the Constitution of Sri Lanka may be relevant to the discussion on the constitutionality or otherwise of the President’s action.
Clause 42(4) (4) The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament
Clause 46. (1) The total number of– (a) Ministers of the Cabinet of Ministers shall not exceed thirty; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty.
Clause 46 (2) The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he– (a) resigns his office by a writing under his hand addressed to the President; or
(b) ceases to be a Member of Parliament.
Clause 46 (3) A Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers and a Deputy Minister, shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he– (a) is removed from office under the hand of the President on the advice of the Prime Minister; (b) resigns from office by a writing under his hand addressed to the President; or (c) ceases to be a Member of Parliament.
Clause 46 (4) Notwithstanding anything contained in paragraph (1) of this Article, where the recognized political party or the independent group which obtains highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by Parliament.
Clause 46 (5) For the purpose of paragraph (4), National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups.
Dr Jayampathi Wickremaratne, MP has said that Mr Wickremesinghe was appointed as Prime Minister in a UNF (UNP and other minor parties) government in August 2015 and that the national government was formed subsequently. His argument is that when the national government falls, the government goes back to the UNF. This is a moot point as Mr Wickremasinghe was appointed on the 21st August 2015 after the SLFP decided on the 20th August to form a national government with the UNP although the formal MOU was signed after that. He was appointed on the basis of an intent to form a national government. It will be interesting to see how the Courts would interpret this, as it is understood that intent matters in interpretation of laws.
For the benefit of readers, the chronology of events that led to the appointment of Mr Wickremesinghe is noted here. The general election was held on the 15th of August 2015. On 20 August 2015 the central committee of the SLFP, the main constituent of the UPFA, agreed to form a national government with the UNP for two years. Mr Wickremasinghe was sworn in as PM on 21 August 2015. Immediately afterwards a MOU to work together in Parliament was signed by acting SLFP general secretary and UNP general secretary, On 3 September Parliament voted by 143 votes (101 UNFGG, 40 UPFA, 1 EPDP, 1 SLMC) to 16 votes (11 UPFA, 5 JVP), with 63 absent (43 UPFA, 16 TNA, 3 UNFGG, 1 JVP), to approve the formation of a national government.
Three cabinet ministers were sworn in on 24 August 2015. A further 39 cabinet ministers, 28 from the UNF and 11 from the UPFA, were sworn in on 4 September 2015. Three more cabinet ministers, one from the UNF and two from the UPFA, were sworn in on 9 September 2015. 19 state ministers (11 UNF, 8 UPFA) and 21 deputy ministers (11 UNF, 10 UPFA) were also sworn in on 9 September 2015. Two more deputy ministers, both from the UPFA, were sworn in on 10 September 2015. A further cabinet minister from the UPFA was sworn in on 23 October 2015. A further cabinet minister from the UNF was sworn in on 25 February 2016. A UPFA state minister and two deputy ministers (one UNF, one UPFA) were sworn in on 6 April 2016.
The issue that readers could ponder is, that is, if we follow Dr Wickremaratne’s point of view, was Mr Wickremasinghe appointed as Prime Minister of a UNF government on the 21st of August or not, and whether the intent to form a National government was taken into account when he was appointed, and upon formation of a national government after the Parliamentary vote on the 3rd of September, whether he took oaths again as the Prime Minister of the national government.
On the basis of the 19th Amendment, the government (and therefore the cabinet) that existed before Mr Wickremasinghe was removed from office by the President, ceased to exist once the UPFA withdrew from it. Dr Wickremaratne seems to contend that in the event, the status quo should revert to a UNF government headed by Mr Wickremesighe. So, the question whether in fact there was a UNF government when Mr Wickremasinghe was appointed the Prime Minister on the 21st of August 2015 becomes a key point of contention. The powers vested in the President to appoint or remove a Prime Minister also needs to be considered from the entirety of the constitution and not just the 19th Amendment. The entity that is best suited to go into this and provide clarity to the public is the Supreme Court and one wishes someone amongst those who are clamouring for democracy seeks such clarity.