By Rajan Philips –
He has done it again. Aided and abetted by self-serving advisers providing vulgar interpretations of the Constitution, Maithripala Sirisena has dissolved parliament in a clear violation of the Constitution. After two weeks of trying, bribing and cajoling parliamentarians, the Sirisena-Rajapaksa government has been able to peel off only nine renegades from other parties, not enough and short by eight to show majority support (113 out of 225) in parliament. All along the President has been insisting that he had a majority in parliament. That was a lie and he knew it. He knew it when he wrongfully claimed that he was exercising his constitutional power properly in appointing Mahinda Rajapaksa as Prime Minister because, Mr. Rajapaksa, “in his opinion (is) most likely to command the confidence of parliament.” And some of the President’s fake forensic men argued spuriously that the President’s ‘opinion’ is not meant to be quantified or tested by a vote in parliament. One’s opinion, as a witty former Philosophy Professor at Peradeniya (SV Kasinathar) used to say, is not one’s belch to be left alone!
As the ‘opinion’, or belch, argument was getting blown in their face, the presidential advisers pulled another rabbit out of Article 33 (2) (c) on the President’s power to “summon, prorogue and dissolve parliament”, a rather redundant addition to a routine Article enumerating the President’s Head of State powers. They are mischievously hiding themselves and the President from the very specific provision (Article 70(1)) stipulating that: “the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”
Rash and Unnecessary
Through his now familiar presidential gazette, Sirisena has fixed January 5 as the date for the General Elections and for the new parliament to convene on January 17. Not so fast. For as I speculated last week, and is now being reported in some media outlets, the Elections Commission Chairman, Mahinda Deshapriya, apparently is not going to move ahead preparing for the election without checking with the Supreme Court about the legality of the President’s precipitous actions. Once again, the President has quite rashly and unnecessarily pushed the country’s institutions and its custodians into confusion, conflict and frustration.
The President’s sacking of Wickremesinghe as PM and the appointment of Rajapaksa in his place was challenged by a majority of the Members of Parliament. That set the Speaker and his staff, the Secretaries and the Sergeant at Arms, at loggerheads. The Speaker was privileging the supremacy of parliament while his staffers were swearing by the presidential gazettes. Dinesh Gunawardena established squatter’s right at the office of the Leader of the House, just as Ranil Wickremesinghe has taken over Temple Trees. He will likely remain there through the election season, if it were to unfold with greenlight from the Supreme Court. Even before the matter gets to Hulftsdorp, there could be differences of opinion among the Elections Commission staff over the legality of the dissolution of parliament, just as there were in parliament over the legality of removing a sitting Prime Minister and the propriety of proroguing parliament.
One way or another the matter is going to be heard at the Supreme Court, for the UNP, the JVP and the TNA are reportedly going to petition the Court. And the Court will likely be called upon to adjudicate on a whole host of questions, not just the dissolution of parliament. Was the President within his constitutional powers in everything that he did and has been doing starting on that fateful Friday, October 26? Who in fact now constitute the government? There are two contending Prime Ministers: one occupying the PM’s official residence and the other occupying the PM’s physical offices. Will the court pick one? Or direct parliament to resolve it before going to an election? And even after an election can the current President be relied upon to appoint the MP whom he may not like but who can demonstrate majority support among Members of parliament? And will the court set objective criteria to help the President form his ‘opinion’ before appointing a Prime Minister? What about the legality of the recent appointments of cabinet ministers who will now become part of the caretaker government? Can they be allowed a free ride of the state’s resources to benefit their election campaigns?
AJ Wilson wrote that “the Supreme Court of Sri Lanka is placed right in the centre of the political maelstrom by the Constitution.” It could be said that in this instance the Supreme Court is being dragged into a political maelstrom by the President of the Republic not on account of the Constitution but in spite of it. What will the President do if the Supreme Court were to, as it most likely would, rule that the dissolution of parliament is unconstitutional and not valid in law? Dissolve the entire court? And leave him as the only one standing in this senseless slaughter of the constitution? Sirisena was elected to constitutionally abolish the presidency. Instead, he is presidentially destroying the country’s constitutional system of government. A lot rests on the Supreme Court to help the country find a way out of this mess.
The 2015 legacy of Sobitha Thero
A painful irony of the last two weeks of presidential antics is that the President has timed them to coincide with the third anniversary of the death of Venerable Sobitha Thero, but for whom Maithripala Sirisena will not be where he is today. After gatecrashing Sobitha Thero’s birth anniversary earlier this year to vent his political spleen, Sirisena was a no show at the third commemoration event, which turned out to be an occasion for rallying civil society activists against the current actions of Sirisena, the same man whom they had spiritedly championed as the common candidate in the January 2015 presidential election. While Sirisena’s actions are politically abhorrent to anyone positively informed in politics, they are also personally painful to everyone who invested their energies in the yahapalanaya movement that led to his monumental victory in January 2015. What began as a monumental victory has now ended in a colossal betrayal.
Jayadeva Uyangoda has powerfully articulated the personal and the political involved in what has now become the Sirisena phenomenon. Fittingly, Uyangoda was the principal participant in this year’s Sobitha Thero commemoration and delivered a characteristically profound and sincere speech with a clarion call to civil society to wake up and protect the country’s system of democracy from the blatant and insidious attacks against it. Although, Sirisena avoided the commemoration event, he did not fail to notice the growing nucleus of a new movement to challenge his acts of betrayal and to restore the path that he has abandoned. The fear of the growing strength of this movement is an additional reason behind the President’s sudden decision to dissolve parliament.
In 2014, Mahinda Rajapaksa chose to call a presidential election, against the better advice of others in his government, to take advantage of a mistakenly auspicious astrological timing, and to avert the risk of campaigning later in a more uncongenial economic situation. In this year of grace, 2018, Maithripala Sirisena has self-servingly decided to dissolve parliament, to take advantage of the security of his remaining tenure as President, but in utter disregard of the need for governmental stability to navigate the economy through rather challenging times. In his calculations, he will still be calling the shots after the elections, in appointing a new Prime Minister and a new government that will prop him as a presidential candidate for a second term in office.
But to modify the old saying, many a plan of mice and Maithri might just go awry. In fact, every one of his plans throughout this year has gone wrong. The February Local Government elections were a disaster for the President. His machinations to move a No Confidence Motion against Ranil Wickremsinghe ended in embarrassment. No one else in the UNP would trust Maithripala Sirisena to become his Prime Minister. And, finally, his marriage of convenience with Mahinda Rajapaksa has turned out to be hugely inconvenient for the Rajapaksas. Already, it has been reported, Mr. Rajapaksa has berated SB Dissanayake for cooking up the current scheme without checking the numbers in parliament.
All of sudden, it is 2014 and 2015 all over again. As I wrote last week, in one fell swoop, so to speak, Sirisena has switched the political locations of Mahinda Rajapaksa and Ranil Wickremesinghe. He has deprived MR of the electoral advantage of being an opposition leader and saddled him with the burden of defending all the indefensible actions of a government. If and when elections come, MR will have to ride into a rather worse economic headwind than what he had tried to avoid in 2014. MR now has to carry the deadweight of an unpopular President on his shoulders. The Rajapaksas may well tell Sirisena to stay home and not to show up on their election platforms.
On the other hand, by sacking Ranil Wickremensighe, Sirisena has given him the biggest blessing in disguise. Thanks to Sirisena, RW now has the UNP and its allies solidly behind him. They can now say good riddance to those who crossed over for two-week long ministerial and semi-ministerial positions, and look to receive strategic cross-overs from other side where there will be cutthroat competition over candidate selection. While the JVP was puritanical about extending support to Wickremesinghe in parliament, they may not be blind to the advantages of a common electoral front in an election that will for all intent and purpose will become a referendum on Sirisena. The TNA can go to its traditional homeland hustings on an exceptionally high note. Whatever way the vote turns beyond the Palmyra curtain, it is not going to be of any help to Maithripala Sirisena.
In fairness, to conclude, one might ask the question what could Sirisena have done as President when he could not work with or personally get along with Ranil Wickremesinghe as Prime Minister. At the basic practical level, Mahinda Rajapaksa gave him the answer when he reportedly told Sirisena that he (MR) was surprised by the President’s willingness to remove a Prime Minister from the numerically largest party in parliament. If it were up to him (MR), he would have just managed the situation. That is the difference.
There was another alternative path open to Sirisena that he neither saw nor was directed to by his ill-equipped advisers. That would have been to take the high, moral road, that Sobitha Thero had traced earlier and what Shri Jayaprkash Narayan had taken in India to unseat Indira Gandhi and upend her Emergency Rule over India. That would have been to apply consistent moral pressure on Wickremesinghe, in cabinet, in parliament and even publicly; and to expose his (RW) deviations from the promises and paths of good governance. Taking the high moral road involves some pre-requisites, which at the minimum will include: a moral frame of reference, a strong backbone and a pair of clean hands. Sobitha Thero and Jayaprakash Narayan had all of them and more. We can hardly place Maithripala Sirisena in the same league.