THE DIFFICULT QUESTIONS PRESIDENT AND THE POLITY NEED TO ANSWER

by Jehan Perera-October 29, 2018, 12:00 pm 

The dismissal of Prime Minister Ranil Wickremesinghe following the withdrawal of the SLFP headed by President Maithripala Sirisena from the government alliance has become yet another source of instability within the polity. It has also caused international ripples with the governments of many countries publicly expressing their concerns and the UK issuing a travel advisory to its citizens to be careful when travelling to Sri Lanka in the near future. Therefore the sooner this crisis is resolved the better it will be for the country. It is to be hoped that all parties concerned will act with restraint. The desire to corner the other and utterly defeat it can be a cause for further instability that outlives the present crisis.

The main issue at stake is the transfer of power from one government to another and this needs to be done in conformity with the Rule of Law or else the longer term consequences can be catastrophic. In his first address to the nation after the change of government, President Maithripala Sirisena explained his motivation in sacking Prime Minister Ranil Wickremesinghe. He spoke of corruption, an assassination plot against him and the sale of national assets to foreign parties, among others. These were all serious issues. But he did not mention the issue that was considered the elephant in the room during their period of cohabitation. This was a contentious issue, to which the answer is still far from clear, as to who would be the presidential candidate on the government side.

It is now generally believed that President Sirisena is not interested to adhere to his one-time promise to be a single term president. The increasingly contentious relationship between the president and prime minister, and their two respective parties, the SLFP and UNP, made it unlikely that either UNP voters or UNP leaders would have wanted him to be the beneficiary of their votes once again. But if contesting the presidency is his ambition, then President Sirisena will have a challenging task ahead. He will need to restore the confidence of the people that he has acted wisely and in conformity with the Rule of Law which exists to ensure social peace and justice.

CONSTITUTIONAL CRISIS

In his speech justifying his action in sacking Prime Minister Wickremesinghe, the president gave much emphasis and spent most of his time in elaborating on his abhorrence of corruption. However, he failed to explain why he had appointed former president Mahinda Rajapaksa as the new Prime Minister when he had accused him of abuse of power, violation of human rights and corruption in the past. During the past three years, during which time President Sirisena has been head of state, and chairs the meetings of the cabinet, the former president and his close asssociates were regularly assailed for having engaged in corruption, abuse of power and violation of human rights during their period of supremacy in the country. Some of the former president’s close family members had corruption cases filed against them in the courts of law and even had to spend time in remand custody. These cases are likely to get stalled if not thrown out in the present circumstances.

It is worthy of note, and remembrance, that President Sirisena was elected in 2015 by the votes of people who rejected corruption, abuse of power and human rights violations that had reached excessive proportions and had made Sri Lanka a virtual pariah state in the eyes of the international community. Just a week before he sacked Prime Minister Wickremesinghe, Sri Lanka had obtained first place in the world for being the best country to visit, on account of its enjoyment of democratic freedoms among others. Chief amongst those who campaigned for presidential candidate Sirisena at those elections was Prime Minister Wickremesinghe. But on Friday last week, even as the courts of law closed for the weekend, and no immediate recourse to them was possible, he appointed his former nemesis as the prime minister and thereafter sacked the man who had campaigned for him.

Dr Asanga Welikala who teaches law at Edinburgh University has analysed the events on Friday evening in the following manner - "Indeed, the whole set of circumstances suggest not the way a change of government ought to occur in a democracy, but the sharp practices associated with a constitutional coup, which is likely to lead to a constitutional crisis. It is a constitutional coup because the serving Prime Minister has not legally ceased to function in office before a new Prime Minister has been appointed. And it will lead to an unprecedented constitutional crisis because there are now two competing Prime Ministers and their parties jostling for power, authority, and legitimacy at the very heart of the state."

Although most Sri Lankans are unlikely to be able to express themselves in this analytical and concise manner, they seem to have imbibed its essence in much the same way. Many of those who are supporters of former president Mahinda Rajapaksa, and admire him for his leadership and what he did to defeat the LTTE, do not agree with the way he became prime minister. This was the case in Colombo, Badulla and Negombo from which I got first hand anecdotal reports.

In the North and East of the country, which experienced the three-decade long war, there is also concern that the promises made by the government in terms of return of land, release of detainees and finding of missing persons and reform of the constitution will not happen. Over the past three years the people there have been complaining that the changes are too slow and they want them speeded up. A few weeks ago, President Sirisena pledged that all civilian-owned land in the North and East that is under military occupation would be returned by the end of the year. The president was even specific that it would be December 31 when all land was returned. But there is now doubt that this promise will be delivered on.

BUILD UPON

The concerns of the ethnic minorities about the new government formation is not limited to the North and East. This may account for the fact that the leaders of nearly all the ethnic minority parties have continued to stand by Prime Minister Wickremesinghe and support his position that he continues to be the legitimate prime minister. They appear to have accepted the position that his sacking was not in conformity with the constitution. Prime Minister Wickremesinghe has contested his dismissal, and the appointment of a new prime minister, on the grounds that it does not conform to the 19th Amendment to the constitution. The 19th Amendment specifies that the Prime Minister can only cease to hold office by death, resignation, by ceasing to be a Member of Parliament, or if the government as a whole has lost the confidence of Parliament by a defeat on the throne speech, the budget, or a vote of no-confidence.

Legal opinion is divided on this matter and the final arbiter will necessarily have to be the Supreme Court. The legality of the Prime Minister’s dismissal needs to be resolved by the Supreme Court. Apart from questions of law there is also the question of democratic process. The changing of governments and leaders is part and parcel of democracy. But due process needs to be followed, the constitution must not be violated and the Rule of Law must prevail when such changes take place. Despite violent conflicts in the past, Sri Lanka can take pride in the fact that transfer of power to successive administrations was achieved through democratic electoral processes.

The practice of democracy requires consultation with the general public and transparency in decision making. The secrecy in which the president’s decision to sack the Prime Minister was made with no transparency so much so that it caught the country’s people, and most of the government, by surprise was not in the spirit of democracy. Parliamentary democracy is a public process not a secret enterprise. Therefore the president’s action in proroguing parliament until November 16 is unacceptable in democratic terms. The discussion that is taking place all over the country, on the streets, in workplaces and in people’s homes, needs to be taken to parliament. The most urgent need is for parliament, as the supreme law making body, to meet and find ways and means to resolve the crisis. The president needs to heed the imperatives of democracy, the need to follow due process and reconsider his decision to prorogue parliament till November 16.