Continuing uncertainty, conflicting claims and counter-claims
Sirisena Act, Week 2:
Rajan Philips-November 3, 2018, 9:06 pm
As the country heads into Week 2 of the Sirisena Act, the only certainty is continuing uncertainty. There are conflicting claims and counter-claims from the two sides of the parliamentary divide, and even from the same side. It is not clear whether Week 2 will bring any conclusive answers to the questions that have emerged and keep emerging after President Sirisena embarked on his clearly unprecedented political adventure. The Sirisena Act is unprecedented because never before has a Prime Minister been dismissed without a dissolution of parliament. It is also patently unconstitutional because a primary purpose of the 19th Amendment, adopted virtually unanimously by parliament and claimed by President Sirisena to be the greatest achievement of his presidency, was to specifically rescind the utterly arbitrary and unparalleled powers of the President (in the 1978 Constitution) for removing the Prime Minister and for dissolving parliament after one year of a general election.
The constitution as it now stands precludes the President from removing the Prime Minister at her or his whim, and from dissolving parliament within four and half years of a general election unless requested by a parliamentary resolution passed by two-thirds of its members. The two limitations underscore the separation of powers and the necessary balance between the executive and the legislature. Even in purely parliamentary systems the old advantage given to sitting prime ministers to call for dissolution at will has been purposively removed. In Britain a resolution by parliament with a two-thirds majority is now required to dissolve parliament within five years of a general election. The 19th Amendment is apparently modelled on that.
With neither party to the dispute asking the Supreme Court for a ruling (except for one public interest petition on the proroguing matter), the constitutional question triggered by the Sirisena Act is doomed to remain unanswered. The assertion that it is up to parliament to decide leaves open the precedent for a similarly impetuous act by a future President. Perhaps it is expedient now for either side not to ask the question and risk an unfavourable answer. It is quite possible that even if asked, the Court may just wash its hands off and say that it is up to parliament to decide. The judiciary might even mutter under its breath: ‘a plague on both your executive and legislative houses’. That would be a very fair obiter.
The non-committal position of the Attorney General also speaks volumes to the unconstitutionality of the Sirisena Act. And he is not without precedent. One of his more illustrious predecessors, Victor Tennekoon, somewhat similarly recused himself from appearing for the government in the first Constitutional Court case in 1973. Interestingly, the AG’s statement came a day after Minister Mahinda Samarasinghe had literally pulled a fast one and stolen a headline story with a purported legal opinion from the Attorney General’s Department in support of the President’s action.
The question of constitutionality will again emerge if the current standoff were to continue and if neither side is able to demonstrate a majority in parliament. The constitutional way out would be for the otherwise divided parliament to come together and muster a two-thirds majority support for a resolution asking the President to dissolve parliament and call for a general election. Of course, nothing prevents our President from enacting Act II - to dissolve parliament and call for an election, damn the 19th Amendment. But will the Commissioner of Elections, who has more backbone than all the spines in parliament combined, go along with a patently unconstitutional presidential act? He might either refuse to comply, as he should under the Constitution, or seek a remedy out of the mess by asking the Court. Finally!
Interestingly, the appetite for an election is not uniform among the current MPs. The hungriest group of course is the SLPP/JO contingent. The JVP is also calling for an election. The UNP/UNF has also implicitly agreed to going for an election in case it is not able to show majority support in parliament. The TNA may prefer a general election to a provincial election to avoid a home and home match with its one time Chief Minister CV Wigneswaran. The stranded outliers are Sirisena’s SLFPers. Not quite knowing whether they are coming or going in the new government, the chiefs among them lead by Nimal Siripala de Silva and Mahinda Samarasinghe have managed to come together at a press conference and stipulated that the Parliament cannot be dissolved even if the new government is defeated on a Vote on Account? They know they are safer in an extended parliament than in facing the wrath of the electorate. Where does that leave their only provider, the President?
The Loneliest Figure
Some of us have been keeping a running scorecard to monitor the shifts in party standings after Sirisena pulled the curtain on Wickremesinghe and started his own Act. There hasn’t been a deluge of any kind but significant leakage from the UNP/UNF to the other side. When President Sirisena began his ‘Act’, the party tallies in parliament were: UNP/UNF 107 (including the Speaker), SLFP/UPFA/JO/CWC/EPDP 96, TNA 16 and JVP 6. Since then there have been six defections from the UNP/UNF and one surprisingly from the TNA, pushing the JO/UPFA tally to 103, or two more than the UNP/UNF total now reduced to 101.
If there are no reverse defections to the UNP/UNF, the new government side will claim a psychological southern victory – that they have a majority without the TNA’s support. It is for this reason that Mahinda Rajapaksa has reportedly asked the TNA leader to stay neutral in their (southern) home and home contest. At the same time Namal Rajapaksa is also reported to be courting individual TNA MPs to defect. And he seems to have succeeded in teasing out at least one so far. The Rajapaksas are a clever bunch and are playing a watchful game.
They have left the grandstanding to Ranil Wickremesinghe and Maithripala Sirisena and are quietly taking control of the key portals of the State. No one from their side, other than Mahinda Rajapaksa, has coveted or received a cabinet position. Cabinet positions are reserved for SLFP doubters and UNP defectors. Their supporters are also alleged to have had a hand in manipulating the stock market to keep rallying in the midst of all the political unravelling. They are even keeping their intra-political lines of communication publicly open: to wit, the much reported meeting between Ranil Wickremesinghe and Gotabhaya Rajapaksa. The meeting apparently lasted only seven minutes, but its symbolism will be much longer lasting. It is also reported that Mahinda Rajapksa vetoed a suggestion by the President to forcibly evict Ranil Wickremesinghe from Temple Trees.
The loneliest figure in this continuing drama of uncertainty is also the most powerful person in the country: President Sirisena. Deservedly so! For who would have thought that what began as a pleasant political surprise in January 2015 would turn into a massive presidential misadventure in October-November 2018? Who would have thought Maithripala Sirisena, who double-crossed Mahinda Rajapaksa and joined forces with Ranil Wickremesinghe in November 2014, will on the fourth anniversary of that historic defection spurn Wickremesinghe for Rajapaksa in a show of political tantrum? Who would have thought that by firing Ranil Wickremesinghe, Sirisena would transform an icon of establishment inertia into a reluctant symbol of popular resistance? Who would have thought that in the same fell swoop, Mahinda Rajapaksa would be stripped of his Jana Balaya protest mantle and saddled with the unpopularity of propping up a rotting government? And who would have thought that the Constitution JR Jayewardene crafted so egotistically to provide stability and strength to the political order, would be wrecked so easily to end up providing neither stability nor strength but constitutional confusion and parliamentary paralysis?
Embedded in this confusion and paralysis are conflicting claims and counter-claims by all sides in the country’s political universe. Media outlets are publishing contradicting news reports of purportedly same events or stories. Political spokesmen from the same side are contradicting each other in the same news conference. You can imagine the message free-for-all in the social media, the main domain of ‘alternative facts’. On Thursday, there was a fleeting period of certainty that parliament would be meeting tomorrow. Even the markets responded with a spontaneous spurt; the rupee stood still and for a moment even rose a bit. Both went down as markets closed on Friday and the uncertainty for Week Two took a grip on the second weekend of the political theatre.
The day of reckoning seems pushed back to the prorogued date on 16 November. There are stories that Speaker Jayasuriya is trying to get parliament reconvened on Wednesday, November 7. What will it do if and when it meets? Who will be sitting where? Will there be a new Speaker - although the new government has apparently informed Mr. Jayasuriya that they would want him to continue as Speaker? Gracious, as well as smart – to neutralize a potential UNP vote! Will there be a ceremonial address by the President? Will there be a Vote on Account? Or will there a Vote of Confidence, or No Confidence – and on whom? Even an Erskine May or an NM Perera would find it difficult to find a procedural way out of the tangled web that President Sirisena has so childishly weaved. And no one is looking to him to find a mature way out of the mess he has created.
