24 September, 2020

Blog

Undemocratic Vs. Unconstitutional   

By S. I. Keethaponcalan –

Dr. S. I. Keethaponcalan

Believing that he could win a third term as president, Mahinda Rajapaksa scheduled the presidential election for January 2015. After some time, it became clear that Ranil Wickremesinghe will not be contesting the election as he was perceived as a week candidate. Several alternative names were suggested. One of my friends who had a deep connection to the United National Party (UNP) told me that Maithripala Sirisena would be the common opposition candidate. I laughed because I did not believe the theory. One, I did not believe that Sirisena will flip on his boss. Two, Sirisena was not known for democracy and good governance, which was the main slogan of the opposition coalition in 2014. Sirisena was believed to be a trusted deputy of Rajapaksa. 

To my utter disbelief, he was fielded as the opposition candidate, and we all supported him. I even signed a petition asking people to vote for Sirisena. I thought it would re-restore democracy in the country. Nonetheless, the recent events and actions of President Sirisena proved that my original reservation in 2014 was not wholly unreasonable. Sirisena is increasingly resorting to undemocratic and unconstitutional actions. I suspect that more will come.  

Undemocratic 

When President Sirisena fired Wickremesinghe and made Mahinda Rajapaksa the prime minister in October, I did not have any doubts about his authority to do so. Many in Sri Lanka believed that removing Wickremesinghe was illegal. I did not agree. Although the 19th Amendment to the Constitution was introduced with the intention of watering down presidential authority and strengthening Parliament, we never moved away from the executive presidential system. Such a shift would need the approval of the people in a national referendum and a two-thirds majority in Parliament.

The President still is the boss. As we all know, the 19th Amendment conferred the powers on the President to appoint the Prime Minister. 

In a way, the Constitution conceived a hybrid system where parliament is elected directly by the people and is sovereign. The 19th Amendment clearly states that the president can appoint a member of parliament “who, in the President’s opinion, is most likely to command the confidence of Parliament.” What was clear on October 26 (and even today) was that Mahinda Rajapaksa did not command the confidence of Parliament. It was in April 2018, Wickremesinghe proved his majority without the support of the United People’s Freedom Alliance (UPFA). Therefore, the President had no reason to believe that Rajapaksa commanded the confidence of Parliament.

This was where President Sirisena transformed into a completely undemocratic person and gave leadership to an illegitimate project. A president who adheres to democratic principles would have asked his (or her) newly appointed prime minister to go to parliament and prove the majority without proroguing the national legislature.         

The plan was to construct the majority (113 votes in parliament) while being the government. The plan succeeded to a certain extent as a handful of members from other parties crossed over and accepted “rewards.” However, since the inception of the “coup,” constructing the majority was going to be very demanding. In an essay titled, President Sirisena’s Second Coup: Reasons & Numbers, I pointed out that “given Ranil Wickremesinghe’s grip on the UNP parliamentary group, getting 12 MPs from the UNP will not be an easy target.” Now, it has been proved that the coup could not convince adequate members from the UNP or its coalition partners to cross over.

I do not believe that the Sirisena-Rajapaksa combo did not anticipate this issue. So, they had a plan B. The plan B was to dissolve Parliament if the plan A did not work. The advantage of this strategy was that it bestowed control over state resources which will be more than helpful during the general election. 

According to the Constitution, the government of the day should continue as the caretaker administration during the election. The public sector employees, vehicles, funds, state media and so on would tremendously boost the chances of the Mahinda Rajapaksa headed coalition in the election. An added interest was demonstrated in taking over the state media institution. This control would be crucial.  Now, the plan B is in play. Sri Lanka is heading towards a general election with a caretaker government that could not prove its majority in Parliament. 

Unconstitutional 

If sacking Ranil Wickremesinghe was undemocratic, dissolution of Parliament indeed was unconstitutional. 

The authoritarianism of Sri Lankan presidents had specific nexus with the president’s ability to dissolve Parliament. Initially, the president had the powers to dissolve parliament after “one year” from the date of the general election. The 19th Amendment seriously altered this provision and stated that the “President shall not dissolve Parliament until the expiration of a period of not less than four years and six months” of its first meeting. Originally, the president had the powers to dissolve parliament if the legislature asked the president to do so by a “resolution.” 

Hence, what was needed then was a simple resolution with a simple majority to dissolve parliament before one year from the date of the election. Now, after the introduction of the 19th Amendment, the president can do so only by a resolution approved with a two-thirds majority. President Sirisena did not even have a simple majority, let alone a two-thirds majority, to dissolve parliament. 

Hence, the dissolution of Parliament was unconstitutional. There can hardly be any doubts about this. Newspaper reports indicate that the UNP and some of the other political parties including the Janatha Vimukthi Peramuna (JVP) and the Tamil National Alliance (TNA) will go to the Supreme Court challenging the dissolution of Parliament. They should because they have a case. That does not mean that they will win.

Sri Lankan judiciary is hardly independent. The courts have even dropped the pretention of independence. For example, there were travel restrictions on former defense secretary Gotabhaya Rajapaksa and Tissa Attanayake when the UNP was in power. As soon as the government changed, these restrictions were removed. Hence, anything could happen in the Court. 

On the other hand, if the UNP and other political parties fail to approach the Supreme Court, the civil society must take the lead in challenging the dissolution because the country needs to test the effectiveness of Article 70 (1), which prevents dissolution before four and a half years. Not disputing the dissolution or a Supreme Court decision in favor of the dissolution at this point, would make Article 70 (1) a dead letter.     

It is imperative to note that the UNP which is going to the courts to challenge the dissolution of Parliament did not challenge the sacking of Wickremesinghe. The party only argued in the public domain that it was an illegal move. Leaders of the UNP probably knew that they could not get any help from the Court on the dismissal of the UNP led government. At least, that was a gray area.  

General Election  

Of significance, is the fact that the decision to dissolve Parliament was a setback for President Sirisena as well. Ideally, he would have preferred to continue with the government headed by Mahinda Rajapaksa and eventually prove this government’s majority. They would have done that if they had the luxury to continue. 

The ideal option was to present the vote on account, distribute handouts to the voters and then go for the general election. This option could not be executed due to two essential factors: (1) the lack of support in the national legislature to approve the mini-budget, and (2) the international pressure. Too many powerful international actors were calling Mahinda Rajapaksa to prove his majority as soon as possible. Hence, the President was forced to dissolve Parliament. I do not believe that local public opinion was a factor in the decision to dissolve Parliament.    

However, a general election is a better option than continuing with an administration which cannot prove its strength in the national legislature. One, such a scenario would have intensified the crisis. Two, the UNP could face the election with added confidence because it has become the “victim” of undemocratic and unconstitutional actions of the President.  Three, the Rajapaksa headed government could not sway the people which a popular mini-budget. Four, if the Supreme Court cannot rule against the dissolution of Parliament, people will have the power to decide what they want. The ball will be in their court.  

Print Friendly, PDF & Email

Latest comments

  • 5
    0

    Keerthi,
    A reasonable good article. In Srilanka anything can happen any time and none of our politicians are trustworthy. Today the people lost their soverignity because of the opportunistic selfish oriented politicians. The whole world is laughing on us, on our politicians, on our civil servants including the judiciary. Even in a dictorship you find atleast some level of trust but you cannot have a dot of confidence in our system. This nation have a higher level of education but unfortunately the level of corruption, cheat, oppotunism, murders, lawlessness tells us that there is no relationship to the education.
    People have the opportunity once again to save our nation and our soverignity from these truthless, selfish, power hungry opportunistic criminals. Our enemies are our leaders,our political parties, and the power we gave to them. It is time to tell them we now take the power and you face the reality.

  • 3
    0

    Lanka never had a constitution and will not have one in future. What you had is a piece of paper with print on it which was trampled numerous time in the past and now. So pretending to have one and so called constitutional experts, lawyers and courts taking up on this matter, round table discussions and debates are all part of the circus called Lanka Politics (unique for its total absurdity) which is played out at the expense of retarded public. . It is the same with our parliament and democrazy. None of this is going to serve any purpose other than few having jobs and taking their salary home.The only
    net gainers here are the crooked politicians who have successfully screwed the people for more than 65 years.

  • 2
    2

    Prof S I Keethaponcalan please note that the day language -divide was created, non-Sinhala speakers were pushed to a corner of no-say in governance. Successive GoSLs, for all practical purposes, segregated state protection.
    We stepped into an Apartheid square which is undemocratic.
    After a few years the constitution was changed ostensibly to provide state protection to all Lankans. But in practice this turned out to be whitewash. We have remained in the same square.
    .
    The discussion on “Undemocratic Vs. Unconstitutional” is of academic interest only.

  • 0
    0

    The appointment of Mahinda Rajapaksa is not only undemocratic but unconstitutional as well. Article 42 (4) applies only to the first prime minister. It does not apply to a sitting Prime Minister. After he appoints a Prime Minister only the parliament can do or undo him. If the President has any doubts about Prime Minister having majority support in the parliament he can ask him to prove his majority. The President cannot dismiss him. Therefore the dismissal is not only undemocratic, but it is also unconstitutional. Since October 26, the President has broken every Article/Clause in the constitution.

  • 1
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.