Comments on President Sirisena’s special
statement
By Neville Ladduwahetty-July 23, 2015
President SirisenaPresident Sirisena in his special statement on July 14, 2015, said: "… my sole interest in the next election result would not be about which party will receive majority votes out of 225 coming to Parliament, but about making sure the agenda that I promised to the people on January 8th will be taken forward with the support of the parliament. All my decisions have been made with regard to making sure that goal is achieved".
The President should realise that without the support of Parliament the system does not work under provisions for separation of powers. This dependence is an inherent feature of the Executive Presidential system. In such a system the Executive powers are exercised by the President and the Legislative powers are exercised by Parliament. Therefore, the President has to depend on the support of Parliament to achieve his goals.
This support is assured when the government in power is from the same political party as the President. When the government in power is politically different to that of the President, passing legislation requires the support of the Opposition. Such a situation is compounded when the government in power in addition to being politically different to that of the President, is also numerically small (e.g. UNP) and a numerically large party that is politically affiliated with the President (UPFA) is in the opposition. Under these circumstances, no legislation could be passed without the support of the opposition. This was the situation in Sri Lanka before Parliament was dissolved.
PRE-ELECTION BACKGROUND
Since Mr. Sirisena was elected President with the support of the UNP the expectation was that the bulk of the UPFA would join the President in forming a UNP/UPFA Government. Such a government would have been possible if 47 UNP members joined up with the rump of the 142 members of the UPFA. Since the majority of such a coalition was with the UPFA the post of Prime Minister should have been from the UPFA since such a person would enjoy the confidence of Parliament as called for in the Constitution. Under such a set up the President would have been assured of the Parliamentary support needed for him to pass legislation relevant to his agenda.
However, a UNP/UPFA Government with a Prime Minister from the UPFA did not materialize because of a pre-election agreement between the President and the UNP that obligated the President to appoint Mr. Ranil Wickremesinghe as Prime Minister. This resulted in a minority government made up of 47 from the UNP and a few UPFA supporters of President Sirisena while the majority of the UPFA formed the opposition in Parliament. Under the circumstances, it would not have been possible for President Sirisena to pass the 19th Amendment and the Budget without the support of the UPFA in the opposition.
President Sirisena’s stated reason for dissolving Parliament was as follows:
"When the government was about to sink, with the no confidence motion on the Prime Minister, I dissolved the Parliament. The underlying hope of the no confidence motion on the Prime Minister, if it was brought forward to the Parliament, was for someone from the UPFA National List to resign and give that position to Mahinda Rajapaksa. When Mahinda Rajapaksa was able to come to Parliament, the plan was to defeat Prime Minister Ranil Wickramasinghe through a no confidence motion and for the Rajapaksa faction to form their own government. I made sure that doesn’t happen."
The President’s reasoning is seriously flawed because former President Rajapaksa could not have entered Parliament through the National List since his name was not on the 2010 Nationalist List with the Department of Elections. Therefore, under no circumstances could the former President have been a member of the last Parliament.
Had the President not dissolved Parliament the No Confidence motion would in all likelihood have been passed. The President could then have continued with a UPFA government without former President Rajapaksa and fulfilled his promises to the People. The fact that the President opted to dissolve Parliament was most likely to prevent embarrassment to the UNP. This must mean that his obligations to the UNP override his commitments to the people. The irony however is that by dissolving Parliament he has created an opportunity for former President Rajapaksa to contest the forthcoming election and participate in active politics in 2015 without having to wait until 2016, when Parliament completes its full term.
RUN-UP to the ELECTION
Article 5 of the 19th Amendment states: "It shall be the duty of the President to - on the advice of the Election Commissioner to ensure the creation of proper conditions for the conduct of free and fair elections and referenda".
Whether President Sirisena was influenced by Article 5 or not he has declared that he would "… remain in a neutral position during the upcoming election". However, as leader of the SLFP and also of the UPFA, President Sirisena would be expected to actively participate to secure the best outcome for the UPFA at the upcoming election. Such participation would clash with the constitutional need for neutrality. Under these conflicting circumstances, constitutional provision must necessarily take precedence over Party obligations.
Since President Sirisena cannot divest his constitutional obligations his only option is to divest his responsibilities and functions as the leader of the SLFP and UPFA. This means President Sirisena should not be associated with any activities of the UPFA Executive Committee or make statements that could be interpreted as being partial to any party/coalition contesting the election. By divesting his responsibilities as leader of the SLFP and the UPFA in order to remain neutral, he would be making a virtue of a constitutional necessity.
POST ELECTION
President Sirisena also stated that "… I do not wish to give Mahinda Rajapaksa the position of Prime Minister". What needs to be appreciated is that the system works when the post of Prime Minister is assigned to one from the largest party/coalition which in this instance was the UPFA since they had a 142 member majority. Such a majority enables legislation to be passed without depending on the support of the opposition. On the other hand, a Prime Minister from a minority coalition such as the UNP would have to depend on the UPFA majority in the Opposition to pass any legislation; as demonstrated with the 19th Amendment and the Budget. In addition, the process of selection of a Prime Minister should not be the personal choice of the leader of a political party. Instead, it should be according to the provisions laid out in that party’s Constitution. In the case of the UPFA it should be the 72 member Executive Committee that should ultimately decide who would be the Prime Minister, and who should be nominated to contest the forthcoming election. This is an elementary aspect of democratic practice.
The concepts outlined above explain the logic of the Constitutional provision that the Prime Minister should be one that enjoys the confidence of Parliament. In this regard it should be noted that appointing Mr. Ranil Wickramasinghe as Prime Minister was a violation of the Constitution because he was the head of a minority government that relied on the opposition to get any legislation passed due to the fact that he did not enjoy the confidence of Parliament. Therefore, even if the views of President Sirisena are taken into consideration as leader of the UPFA, the person selected to be Prime Minister has to satisfy the Constitutions of the UPFA and Sri Lanka. Under these circumstances, the President’s statement that he does "not wish to give Mahinda Rajapaksa the position of Prime Minister" should be treated as a non-binding wish.
CONCLUSION
President Sirisena could have accomplished his goals if he formed a UPFA government with a UPFA Prime Minister and a Cabinet of Ministers. Forming such a government was not possible because of his pre-election agreement with the UNP. This agreement required him to appoint Mr. Ranil Wickramasinghe as Prime Minister. In the absence of the rump of the UPFA joining the 47 UNP members in Parliament the government that was formed could not pass any legislation on its own accord. Consequently, the President Sirisena had to prevail on the UPFA in the opposition to pass the 19th Amendment and the Budget and proclaim both as major achievements.
The UPFA saw its role as a mere rubber stamp to authenticate actions of a UNP led minority government. The unacceptability of this situation coupled with the Central Bank Bond scam compelled the UPFA to initiate a No-Confidence motion against Prime Minister Ranil Wickramasinghe. The President had two options. One was to appoint a UPFA government and keep his promises to the People and the other was to dissolve Parliament to prevent embarrassment to the UNP and its leadership. By opting for the latter he disclosed where his priorities were. It certainly was not to keep his promises to the people despite his repeated claims to that effect.
President Sirisena has declared that he would take a neutral position as far as the forthcoming election was concerned. Such neutrality should prevent him from actively participating in election related activities despite being the leader of the SLFP and the UPFA. Furthermore, the need to stay neutral is a constitutional requirement. Therefore, since the constitutional duties should override party obligations, the President should resign from his position as leader of the SLFP and the UPFA. Not to do so and continue to participate in the Executive Committee activities of both parties such as nominations etc., clearly violates the neutrality required of a President in the Constitution.
