Back to square one

By Arjuna Ranawana- DEC 16 2018

President Maithripala Sirisena’s bid to bring his former rival to power through a back-door arrangement was defeated both by the Parliament and the judiciary. It is fifty-two days since Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed former President Mahinda Rajapaksa in his place. Fifty-two days, during which the country’s economy has been deeply affected with billions of rupees of foreign investment fleeing the country, billions lost in tourist booking cancellations during the busiest tourist season, our credit ratings hammered down and the country forced to a standstill.

Today Rajapaksa is out and Wickremesinghe will be sworn in as Prime Minister for the fifth time in his long career in politics. We are back to square one.

The rolling back of Sirisena’s move to appoint Rajapaksa began with a Supreme Court decision delivered on Thursday (13). It was a sledgehammer blow, a Seven-judge Bench of the Supreme Court said that the President has no power to dissolve Parliament and call for fresh elections before four-and-a-half years had elapsed after its election. This is the first time in our history that the Courts have found that the Chief Executive wilfully violated the Constitution.

It was a historic judgment in every sense and a wake-up call for those who still believe the Executive Presidency is all powerful. Seeing all the judges agreeing that the President had been out of line was a clarion call for the upholding of the rule of law and a strong message that our democracy was alive and well.

The much anticipated judgment was delivered to a packed courtroom as the country held its breath because even the man on the street knew of the importance of the Court’s decision. It was not the arcane legal arguments which went over the heads of most people that the people lapped up, but the fact that it was the first time that a decision of such importance taken by an Executive President of Sri Lanka had been challenged and won!

As Ceylon Today reported, the Court, in two separate opinions, one written by Chief Justice H. Nalin J. Perera and which was joined by Justices, Buwaneka Aluwihare, Priyantha Jayawardena, Prasanna S. Jayawardena, Vijith Kumara Malalgoda and Murdu Fernando, and another concurring opinion written by Justice Sisira J. de Abrew, quashed the proclamation issued via an Extraordinary Gazette dissolving the legislature and calling for a Parliamentary Election, declaring it null and void, ab initio (from the outset), and sans any force and effect in the law.

Delivering the Judgment to a packed house of lawyers, journalists,
Parliamentarians, petitioners, intervenient petitioners and respondents, in Room 502 of the Supreme Court Complex, the Chief Justice said that the petitioners’, including MPs’, fundamental rights, as per Article 12(1) of the Constitution (right to equality and equal protection of the law), had been violated by the arbitrary exercise of power by the Executive President.

Reading his opinion after the Chief Justice, Justice de Abrew noted that according to Article 70(1) of the Constitution the President could not dissolve Parliament until a period of four and a half years from a Parliamentary term of five years since its first sitting had lapsed and could only do so if a two-thirds majority of MPs, including those not present in the House, passed a resolution and requested the President to do so.

Sirisena’s actions ever since he sacked Wickremesinghe and appointed Rajapaksa Prime Minister on 26 October, has only resulted in the country going downhill. The ill-fated decision to dissolve Parliament was taken once it was clear that Rajapaksa was unable to find a majority of Members of Parliament to support him.

Writ of Quo Warranto

As soon as the SC decision was announced, there were whispers that Rajapaksa would resign from the Prime Minister’s post. In fact, he was not legally the Prime Minister at the time as the Appeal Court had issued a stay order on his appointment in response to a Writ of Quo Warranto filed by 122 Members of Parliament opposing him and the question of ‘resignation’ did not apply.

On the following day, the SC gave leave to proceed on Rajapaksa’s appeal against the Court of Appeal (CA) order but upheld the interim order preventing Rajapaksa from continuing as PM. This decision was considered by a Three-Judge Bench comprising Justices Eva Wanasundera, Buwaneka Aluvihare and Vijith K. Malalgoda.

The petitioner’s request to vacate the Interim Order issued by the CA, restraining Rajapaksa from holding office of the Prime Minister and his Cabinet of Ministers from functioning, was rejected by the Court.

The Supreme Court Bench, then granted leave to proceed with the appeal and fixed hearing of the case for 16, 17 and 18 January next year.

Making submissions to the Court on behalf of Rajapaksa, President’s Counsels Romesh de Silva and Gamini Marapana said that the interim stay order, issued by the CA, was illegal. They further pointed out that due to the interim stay order, the Premier and his Cabinet had not been able to perform their duties and that as a result, the country had suffered.

Making submissions to the Court on behalf of MP Ranil Wickremesinghe, President’s Counsel K. Kanag-Iswaran PC said that the CA had issued the interim stay order having seriously considered the submissions made by them. He said that a no-confidence motion had been ratified against the Prime Minister on 14 November in Parliament by a two-thirds majority and the actions of the Parliament cannot be challenged in Court as per the Parliamentary (Privileges and Powers) Act.

The aforesaid order by the Bench came after consideration of those submissions.
 On 3 December, the CA issued an interim order restraining Rajapaksa and his Cabinet of Ministers from functioning until the hearing of the Writ of Quo Warranto filed against them, is concluded. However, the following day an appeal was filed in the Supreme Court against the interim order stating that it was unconstitutional and that the CA has no authority to issue such orders.
 The appeal was filed by lawyers on behalf of Rajapaksa. The 122 MPs who had signed the Writ of Quo Warranto petition, against holding office as the Prime Minister, were named as respondents in the appeal. Meanwhile, a lawyer on behalf of Wickremesinghe filed a motion before the Supreme Court requesting a five-member Bench for the hearing of the aforementioned appeal. However, this motion was rejected by the Court after consideration.

A second motion was filed in the Supreme Court by 122 MPs, who are named respondents of the appeal, requesting that the relevant appeal should not be heard before Judge Eva Wanasundara, in fear of a biased judgment owing to her alleged close association with Rajapaksa. It was announced in Court that Justice Wanasundera, after 40 years of service, would retire with effect from Friday.

Rajapaksa’s decision to back down from his claim to premiership came with the Supreme Court’s decision on Friday not to remove the interim stay order given by the Court of Appeal. The former President’s son MP Namal Rajapaksa told some reporters outside the Court that afternoon that our letters of resignation are with the President.
He just has to accept them. Rajapaksa had by then lost votes of confidence in Parliament four times and was now being restrained from functioning by the Court. Shortly after Rajapaksa conveyed his decision to the President, the latter called Wickremesinghe and agreed to swear-in the UNF leader as Prime Minister. The swearing in is scheduled for 10 a.m. today.

Workings of former President’s camp

Rajapaksa released a statement in which he said he decided to resign as the country was badly affected by the instability and also to ‘prevent any uncomfortable situations which President Sirisena may have to face.’

The way the decision was made for Rajapaksa and his Cabinet to step down gave a glimpse into the inner workings of the former President’s camp. On 26 October it appeared that even his brothers were not aware that he was being appointed as Prime Minister as his younger brother, the former Defence Secretary Gotabaya Rajapaksa was in Galle attending an event organised by a group supporting his political ambitions.
The younger Rajapaksa was asked to rush back to Colombo and made it just in time although he was not present at the Presidential Secretariat when Sirisena handed over the appointment letter to the former President. At the time he accepted the letter, Rajapaksa was surrounded by a number of United People’s Freedom Alliance (UPFA) MPs.

On Friday, in contrast that group seemed unaware that MR was calling it quits and ditching his claim to be Prime Minister. His staff denied that such a decision had been there even as late as 6 p.m. But on Saturday morning the former President ceremonially signed the letter of resignation at Rajapaksa’s Wijerama Road residence, while Buddhist, Muslim and Hindu clergy blessed him. He was surrounded by a number of UPFA MPs as well as officials such as the Secretary General of the SLFP Prof. Rohana Lakshman Piyadasa.

The long-drawn out crisis has seen Civil Society and the smaller political parties in Parliament playing important roles. The Janatha Vimukthi Peramuna, in particular, has been playing a moderating role taking a principled stand on various issues. The JVP has not supported the UNP and Wickremesinghe but has opposed the illegal and unconstitutional acts of the President, voting several times in Parliament against Rajapaksa.

Soon after the SC verdict on Thursday JVP Leader Anura Kumara Dissanayake said the decision was a victory for democracy. He said Parliament had three tasks ahead of it. “We must investigate and punish those who conspired to create this crisis, we must pass the 20th Amendment which has been tabled by us to abolish the Executive Presidency and then we must resolve to dissolve Parliament and hold an election as there are Members in the House who have been tainted by scandal.”

The Tamil National Alliance also took a principled stand and did not cave into various promises made to them by Sirisena and Rajapaksa. They, however, chose to back Wickremesinghe for PM, prompting the Rajapaksa faction to bray that a minority party that once supported the Liberation Tigers of Tamil Eelam has become kingmaker. However, the TNA has said that they will not join the UNP Government or accept portfolios.

The large coalition of Civil Society organizations that came together against the Rajapaksa rule in 2015 and were largely disappointed with the performance of the Wickremesinghe-led Good Governance administration that has come together again and has been given new life. However, they are more critical of the political parties and are calling for more reform at all levels.

Yahapalanaya regime
too slow

Although the Yahapalanaya regime was too slow in prosecuting the alleged wrongdoers of the Rajapaksa period, some of the reforms that they were able to bring in have been tested and proved right during this crisis. The media has been under pressure to be free and fair, the Courts have shown strength and independence at the right time, and efforts to transfer Police officers conducting inconvenient investigations into allegations against Rajapaksa cronies have been thwarted.

Going forward, Wickremesinghe will continue to be backed by his party and the UNF partners All Ceylon Muslim Congress, Democratic National Movement, Democratic Party, Jathika Hela Urumaya, Sri Lanka Muslim Congress, Tamil Progressive Alliance and the United Left Front. The UNP also said that the four MPs who crossed over to support Rajapaksa, Wijeyadasa Rajapakshe, S.B. Nawinna, Wasantha Senanayake and Dunesh Gankanda will be returning to the fold.

The UNP is also saying that a group of Si Lanka Freedom Party MPs had already indicated that they were willing to join Wickremesinghe in forming a National Government. Some of them had been in discussions with the UNP leadership over the past month, they said. Some of the names that are being mentioned are Duminda Dissanayake, Lasantha Alagiyawanna, Weerakumara Dissanayake, Mahinda Samarasingha, Vijith Vijayamuni Soyza, Angajan Ramanathan, Faiszer Musthapha and Lakshman Seneviratne.

There are questions being raised about what portfolios will be handed out. The UNP hierarchy and some back-benchers want Ravi Karunanayake to be given back the Finance portfolio which he lost amid the Bonds scam scandal.

Rajapaksa, meanwhile, continues to call for immediate general elections and is likely to forge an alliance between the newly minted Sri Lanka Podujana Party and the SLFP to face that election.

Finally, this crisis has far reaching consequences for the biggest political actors on the Sri Lankan stage, Rajapaksa, Wickremesinghe and Sirisena.

The President who left the Rajapaksa regime to contest as the common candidate on a Good Governance platform has clearly botched the job. He has proved to be an obstacle to reform and has actively prevented the Police from taking action against corrupt officials. In trying to oust Wickremesinghe and appoint Rajapaksa he has shown that he had no clear strategy.

In simple terms he failed to consult the Supreme Court before he took such actions to see whether he was permitted to do so by the Constitution. He has indicated he wishes to contest the Presidential elections and seek another term but which party would support him? Much of the public anger against the goings-on has been directed at Sirisena.

In the maelstrom following his sacking, Wickremesinghe’s moribund UNP has seen rejuvenation. In fact Rajapaksa quipped last week that he has brought ‘new life’ to the UNP. But along with that the calls for internal party reform has become louder.

 In the crisis, Deputy Leader Sajith Premadasa has emerged as a clear number two and Wickremesinghe has been told by party stalwarts that they will support him in this crisis but Premadasa needs to lead the charge in a future election. Political Scientist Prof. Jayadeva Uyangoda says that the party faithful also know that it was Wickremesinghe’s strategic mind that helped the party outmanoeuvre both Rajapaksa and Sirisena. Therefore, he will still need to be in a prominent position in the UNP.

Finally Rajapaksa, the man who won the war for Sri Lanka and was once hailed as a king has come off second-best this time. He lost the 2015 presidential election; then the Parliamentary election that was held shortly after and now has been pushed out of the PM’s chair which he had occupied through the back-door. Clearly he has lost his lustre.

All three main stars are diminished on the Sri Lankan stage, and now it is time for some new stars to emerge.