By SWR de A Samarasinghe –

Prof. S W R de A Samarasinghe

President Maithripala Sirisena dissolved Sri Lanka’s parliament on November 9, 2018. Media reports suggest that he disregarded the opinion of the Attorney General who had pointed that it was a violation of the Constitution. This event is organically connected to the sacking of Prime Minster Ranil Wickremesinghe and replacing him with Mahinda Rajapaksa two weeks earlier on October 26. 

Those who support the president’s action have cited Article 33 (2) (c) of the 19^th amendment) to the Constitution to justify the dissolution of parliament. His critics have cited Article 70 of the same Amendment that prohibits dissolution before the end of 4.5 years from the first date of meeting of that parliament, unless parliament itself by a two-thirds vote requests dissolution.  

There is a similar constituitonal dispute over the sacking of PM. Sirisena justifies his action citing the 19^th amendment to the Constitution that says “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.” Wickremesinghe urged that parliament must be summoned immediately for a vote of confidence. But Sirisena prorogued parliament until November 16 and thereby revealed that Rajapaksa did not have majority support. If Rajapaksa had majority support it makes no political sense to delay reconvening of parliament. 

Supreme Court

Under the Constitution the Supreme Court is the final arbiter of all constitutional disputes. Ranil Wickremesinghe who opposed his dismissal did not immediately appeal to the Supreme Court. It probably was a tactical decision because he would have been confident that Rajapaksa did not have the required 113 votes and an appeal to the Supreme Court would have allowed Rajapaksa more time to “buy” MPs to reach the required number.  

Bribery 

The available evidence suggests that since October 26^th parliamentarians supporting Wickremesinghe were offered two kinds of bribes. The first, very large sums of money funded from unknown sources. The speculation is that at least some of it came from the ill-gotten wealth that the Rajapaksas accumulated when in government. 

There is very credible evidence that the 2015 Rajapaksa election campaign received $7.8 million (Rs. 1350 million at today’s exchange rate) from a state-owned Chinese company operating in Sri Lanka. The Chinese ambassador in Colombo was the only foreign envoy (government) that welcomed the appointment of Rajapaksa as PM. We do not know if China also provided money to the Rajapaksa camp to give bribes to MPs that crossover.  The silver lining in this otherwise rather sordid picture is that there are enough MPs who were not tempted by large bribes to crossover. There are some honest politicians.  The voters may bear this in mind in the next election. 

The second form of bribery used public office and future tax money. MPs willing to crossover were offered ministerial positions irrespective of their qualifications and suitability. The new ministers were aware that they would have an opportunity to earn much more while in office from acts of bribery and corruption. This opportunity came from none other than Sirisena and Rajapaksa who criticized, with considerable justification, the mismanagement and likely corruption of Wickremesinghe. Given past experience, it is likely that most voters will forget or ignore this blatant contradiction and hypocrisy when they vote next.   

Foreign governments

The role of foreign governments in this fluid political situation must also be factored in to understand the full picture. India and China as major rival powers in Asia and western governments have a stake in Sri Lanka’s political future.  The publicly available evidence splits foreign interests into two broad camps. The first consists of India and all other major western countries including USA, EU members and democracies such as Japan. Their public stand is to urge Sirisena to adhere to norms of democratic and constituitonal governance.  

Authoritarian model

The second camp consists of one country, China.  Its position is different and more complex. 

China is an Authoritarian state that is developing its own version of state-controlled capitalism. The Chinese see its model as an alternative to the liberal democratic market model of the west. Mahinda Rajapaksa’s tenure from 2006 to 2014 and Sirisena’s recent actions generally fit in with the Chinese model. If Sirisena and Rajapaksa prevail in this instance it would be a major victory for China and a serious setback for western democracies and especially for India that perseveres with the liberal democratic model. 

Changing government at the ballot box

Democracy is a fragile form of governance in almost all countries. In Sri Lanka that fragility has been on display in the past. The abortive coup d’état of January 1962 was one such instance. During the 30-year-old civil war Sri Lanka’s democracy came under severe pressure. For example, extended periods of Emergency Rule and the Prevention of Terrorism Act (1989) imposed limitations on civil liberties. Some of the polls, most notably J R Jayewardene’s Referendum in December 1982 to extend the life of parliament by six years, rampant poll abuses, especially in the Eastern Province in the December 1988 presidential election, and the vote rigging and abuse of power in the North Western Provincial Council Election of January 1999, are some notable examples. The above blemishes notwithstanding,  Sri Lanka managed to preserve parliamentary democracy for 88 years from 1931 that allowed the people to change governments. Sirisena’s irresponsible actions have weakened if not destroyed this key element of the fragile foundations of Sri Lanka’s democracy.

Legitimizing authoritarianism

The first step to legitimize authoritarianism was taken on October 26^th when the PM was sacked. Although government was, at best, only semi functional after that date, the “new” government took some actions such as reduction in the price of petrol to please the people.  The private sector carried on business as usual. The two weeks that elapsed somehow gave Sirisena’s action a veneer of legitimacy and created an environment for further violation of constitutional governance. The dissolution of parliament on November 9^th was the next logical step in this path towards authoritarian governance. 

Supreme court

Now Sri Lanka’s constituitonal democracy has been put to a severe test. First, it is likely that there will be a challenge in the Supreme Court on the constitutionality of dissolution of parliament. Political pressure can be exerted on the Supreme Court. But these who want to see democracy prevail in Sri Lanka will have to pin their hopes on the court.

Elections commission

Second, the Elections Commission is supposed to be “independent” and may well decide not to proceed with making arrangements for an election until the court gives its verdict. 

Bureaucracy

Third, the past two weeks also exposed the weakness of the bureaucracy to cope with uncertainty of governance.  For example, it is reported that the Secretary General of Parliament has refused to follow the instructions of the Speaker under whom the former functions. If a general election is held under current conditions the caretaker government that supervises the election will function under Sirisena and Rajapaksa. The public service will have to withstand political pressure to ensure a free and fair election.  

Civil society and media 

Fourth, the action that civil society, media, and political parties take in the next few weeks will also matter for the future of democracy in the country. Political parties and civil society groups have the right to mobilize their supporters to peacefully express their views on the dissolution. The media can play a crucial role by informing the public on the facts and allowing various shades of opinion to be expressed.

Military

So far the military has remained in the background. Sirisena as the commander-in-chief has the right to give orders to the military. But if he is in violation of the constitution as appears to be the case, and the military (and police) complies with his orders to stop peaceful mass protest against the dissolution, another basic norm of democratic governance would be violated. We have to hope that this won’t happen. 

Constitution making 

Finally, Sri Lanka’s attempt to write a detailed constitution making provision for every action and eventuality is a fool’s errand. The world is too complex for that. Rules and norms of governance have to change to accommodate changes in society. For that reasons, to the extent that Sri Lankans can agree, it is better to identify the main principles of governance and make constituitonal provision for them. The rest must be left to ordinary law with the Supreme Court having the ultimate responsibility to decide whether such legislation accords with the constitution. UK does not have a written constitution but the Privy Council has the ultimate responsibility to interpret the law. The US constitution (without amendments) has only about 4500 words and the Declaration of Independence has an additional 1400 words. It has 27 amendments passed over a period of 242 years. Most key changes in governance such as the Civil Rights Act of 1965 that enshrined the right of minorities to vote are taken care of under normal law.  

UK/US constitutional governance works reasonably well not necessarily because there is clear-cut law or a perfect and comprehensive written constitution but because behavior of those in power as well as the public in general is governed by reasonable ethics and a moral code. That does not mean that they are perfect democracies. Far from it. But, among other things, strong state institutions, a reasonably efficient and impartial bureaucracy, an independent media that accommodates a variety of opinion, and most importantly, a judiciary that can be generally relied upon to interpret the constitution fairly helps to protect and nurture democracy. 

Challenge for Sri Lanka 

One of Sri Lanka’s greatest achievements in governance is that we have changed governments at the ballot box (and in a few instances through vote in parliament) within a democratic framework. If we disregard the disenfranchisement of plantation Tamils in 1948/49, Sri Lanka has an 88 year old unbroken record of universal franchise whereas, say, USA has had that only since 1965 and India since 1952. 

It is encouraging to note that In Sri Lanka there are very many from all sections of society that have challenged Sirisena’s action. It is also heartening to note that the military has not got involved so far. 

It is a national tragedy that Sirisena has undermined Sri Lanka’s democracy and set a very bad precedent that others may follow in the future. If that happens the constitution becomes meaningless.  Sirisena would go down in history as the man who virtually singlehandedly jeopardized nearly one century of democratic governance.  

We can probably correct this setback. That can be done if the younger generation of leaders make a fresh commitment to democracy and agree to strengthen our democratic institutions of governance. The opportunity will come in the next election.