Whose ‘government’ are they voting on?

BY N Sathiya Moorthy-April 1, 2018, 8:49 pm
Home Affairs Minister Vajira Abeywardana may have displayed a certain UNP nervousness on facing the no-trust motion, when he said that it was not necessarily against Prime Minister Ranil Wickremesinghe and his team, but also against SLFP partner, President Maithiripala Sirisena. Leave aside the UNP apprehensions that the SLFP as a party or party MPs may vote with the JO motion, he has also exhibited a certain level of constitutional ignorance, which can question his continued choice for the portfolio that he is now holding – even if not as a member of the Cabinet of Ministers for three-plus years now.
If Minister Abeywardana’s arguments hold good then, according to him, Speaker Karu Jayasuriya should acquire the powers of both the President and the Prime Minister if the no-trust motion cleared the all-important parliamentary vote. According to him, the 19th Amendment to the Constitution, initiated by the duo after they had come to power in January 2015, a no-confidence motion could not be brought against the Prime Minister but only against the entire Government.
Subjective powers
Minister Abeywardana’s purported ignorance of the Constitution may be matched only by his equal ignorance of politics. He and those behind him, if any, did not seem to have considered the possibility of Parliament voting for the no-trust vote, and the JO, then citing him, demands that the Maithiri-Ranil duo should quit, lock, stock and barrel. It is the kind of situation that the Rajapaksas would be happy, what with Mahinda R having already called for early polls (though only to Parliament) after his SLPP’s sweeping victory in the 10 February LG polls all across the country. It is also the kind of situation Minister Abeywardene and the UNP would loathe, now and ever, whatever the political fate of Sirisena and the constitutional fate of the presidency, should Parliament vote for the no-trust motion.
Thankfully, however, SLFP’s Local Government and Provincial Councils Minister Faizer Musthapha has clarified the constitutional position, and rightly so. There is still no denying the fact that the Sirisena camp seems to have taken Minister vajira’s ‘threat’ seriously than even possibly intended. In context, Minister Musthapha referred to Articles 48(8) and 44(1) of the Constitution, which clearly mandates that whenever Parliament passes a no-confidence motion against the Prime Minister, the incumbent should step down and the President must appoint as prime minister whoever that commands the support of the majority in Parliament.
It is on situations like this that the ‘subjective’ power of the person of the President comes into play. In other democracies, especially like the Indian neighbour, the nation’s Supreme Court has laid down the constitutional position as far back as 1994. In the famed ‘S R Bommai case’, the Indian Supreme Court also tagged along the condition that any such government, called in by the President of India, or Governors of Indian States, should pass a confidence-test in the respective Legislature. It is another matter that as far back as 1972, the Indian Supreme Court had ruled that there shall be no government at the Centre without a Council of Ministers headed by the Prime Minister (U N R Rao vs Indira Gandhi).
Together, the two judgments meant that the President or the Governor under the Indian Constitution cannot have any ‘subjective powers’ of the kind that is implied in the Sri Lankan context. It is another matter that no prime minister, appointed by the President in Sri Lanka, can escape facing Parliament for long, but in India, it has also been made explicit under the ‘Bommai case’ verdict. Better still, the 1971 verdict even more explicitly states that the President under the Indian scheme cannot acquire all Executive powers to himself. In the Sri Lankan context, under the Second Republican Constitution, which came into force full seven years later, the ‘Executive Presidency’ ensured as much, though, thankfully, no incumbent had tried his legal and constitutional luck at it.
The Indian examples are worth noting, not only because India is a neighbour and is also the world’s largest democracy. More importantly, India has gone through much that could be imagined of under contemporary Third World democratic conditions, in terms of coalition politics that followed the ‘Bommai verdict’ at the Centre, in the second half of the nineties, especially.
What more, at least on two occasions, though only at the level of the States (in Bihar on two occasions), the Supreme Court also took suo motu notice of the Governor keeping the Legislature under ‘suspended animation’, pending a final judicial verdict. And on both occasions, the court reversed the Governor’s recommendations, based on which the President of India acted upon.
On both occasions, the President and the Centre, not to mention the Governor(s) of Bihar, complied with the SC finding, without seeking a ‘review’ of the same. It is another matter that even before the Bommai verdict happened – and more so afterwards, every gubernatorial authority has directed any leader of a coalition government, existing or intended, to prove his legislative majority on the floor of the House, after the SC held that the Legislature and not the gubernatorial mansion is where such decisions should be taken.
Of course, like all precedents of a kind, it had begun with a bad one. In the late seventies, when the ‘Janata experiment’ was failing and Prime Minister Morarji Desai lost his parliamentary majority, then President Neelam Sanjiva Reddy called in the former’s political rival of the time, in outgoing Deputy PM Charan Singh, to form a government even after Morarji’s party successor, Jagjivan Ram had shown up a higher number of MP-supporters. Charan Singh blotted the copy-book for the nation, and so did President Reddy, w hen the former had to bow out without facing the mandated parliamentary vote and the Congress under-writer of the new government, withdrew support. No President in India takes the risk, anymore.
Constitutional loop-hole
Even more to the Indian situation, the ‘Bommai verdict’ remains only as a court directive even close to 25 years later. No political party or government has either sought to contest or concur with the same through a constitutional amendment – a rarity in a Third World democracy, so to say. However, the earlier 1971 verdict found expression in the 42nd Constitutional Amendment Act that Prime Minister Indira Gandhi got passed during the ill-fated Emergency (1975-77). The new provision held that ‘there shall be a Council of Ministers headed by the Prime Minister, to aid and advise the President’, or words to that effect – implying that at no point in time could the Indian President act on his own, citing a constitutional loophole of whatever kind.
But then, a constitutional loophole could still exist under the water-tight Indian scheme, made tighter through amendments and adverse verdicts of the Supreme Court. What if the President appoints his gardener as prime minister, and the latter along with a further coterie calling itself the Council of Ministers, recommends the proclamation of Emergency for starters, and follows it up with the dissolution of the Lok Sabha and State Assemblies, suspends the powers of the Supreme Court, and comes up with such other unthinkable, undemocratic decisions?
It is her
e a nation’s character matters and that is the only real saving against even such theoretical formulations. The alternative in such instances could well be for Indians to consult the likes of Minister Abeywardena, who may have other prescriptions of his latest kind. It is also why the likes of him should not be encouraged to come up with such weird ideas, which, if at all, could only have ‘negative’ effect.
It is here that Sri Lankans have stood out, as well, for every ruler, whom critics and commoners alike would later on dub as an ‘autocrat’ has got elected through democratic polls, and had to continue swearing by the very same democracy. Be it JRJ or MR, or the political parties that they represented when in power, they needed to go back to their people, to obtain a mandate – that the former survived through but the latter ended up losing, too.
Yet for constitutional precedents of the kind, Sri Lankan politicians and popular experts would rather go to the Westminster, calling it the ‘Mother of Parliament’ and to US court verdicts, as it is the ‘oldest democracy’ in the world. They have seldom bothered to visit the working democracies in the Third World, which addresses situations that Sri Lanka alone faces, unlike ‘grown-up’ (!) democracies like the UK and the US do. To them, May’s ‘Parliamentary Practice’ is Bible, not that of Indian authors, Kaul & Shakdhar, which says what Erskine May and his successor-editors have said -- and also offers more from a Third World democracy perspective. If there is a Sri Lankan equivalent, they would not know. The author(s) too would have discussed the Utopian, and possibly not the practical!
(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: sathiyam54@gmail.com)