The political dog fight

Former President Mahinda Rajapaksa, Prime Minister Ranil Wickremesinghe and President Maithripala Sirisena

 Monday, 29 October 2018

Sri Lanka has experienced a constitutional or rather unconstitutional takeover of the Government. A similar incident happened in 2003 when Wickremesinghe was the Prime Minister where President Kumaratunga took over three ministries of the Government. However Kumaratunga was acting constitutionally when she did so. With the introduction of the 19th Amendment to the Constitution, the same thing cannot be said now.

Article 42(4) states that the President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.

Article 46 (2) is as follows “The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he - (a) resigns his office by a writing under his hand addressed to the President; or (b) ceases to be a Member of Parliament.”

In the letter addressed to the PM, the President said that he has appointed him the PM as per the Article 42(4) and he had removed PM from his post according to the powers vested to him according to the Constitution. In the removal letter he has mentioned the Article under which the PM was appointed but carefully avoided to state under which Article the PM was removed. In response to this PM said that he was constitutionally appointed Prime Minister and he command the confidence of the Parliament as contemplated in Article 42(4).

When interpreting Article 46(4) the President’s opinion cannot be based on his personal opinion or the figures given by his advisors that so many members of UNP would cross over but his opinion should be constitutional, which means the person who would command the confidence of the Parliament would be the leader of the party which represents the majority members of the Parliament.

If the President was confident that there would be crossovers from the UNP, he could have followed the constitutional way which means to bring a no confidence movement against the PM in the Parliament. Once he is defeated the President could have appointed a new PM. He has not taken that path but has taken a sudden move to remove the PM and prorogued the Parliament till 16 November. By proroguing Parliament he deprived the right of the PM to show that he has the confidence of the Parliament. The President is taking time to get the support of the members of the Parliament.

Article 42(4) says “who, in the President’s opinion, is most likely to command the confidence of Parliament.” It is who is likely to command the confidence of the Parliament and not who would be. Prorogue of the Parliament proves that the President at present is not prepared to test his opinion. If he thinks that in future he can get his opinion justified in the Parliament, his move is unconstitutional.

Soon after the 2015 presidential election there was a surge of UPFA members of Parliament towards the UNP. Breaking the practice hitherto followed, they were not accommodated in the UNP but they were taken to the Government as they were based on the principles outlined in the election manifesto. These principles were outlined with the intention of finding out a lasting solution to the ethnic problem faced by the country. This Government failed to meet those aspirations, making a lot of people disappointed and as a result those principles also would be reversed and there would be a tendency to surge the MPs of the UNP towards the UPFA.

With two UNP members, Senanayake and Aluthgamage, defecting and getting the support of a sole EPDP MP, the UPFA needs additional support of 15 more members at the time of writing. The JVP declared that it would not support any party. The TNA also will not support the UPFA. It was reported that the SLMC and ACMC would stand with the UNP. Therefore the President expects the defection of UNP members. Power of the new government will be used for that.

If the new government could not muster the confidence in the Parliament, it will be detrimental to the President. It will be a proof that he has violated the Constitution intentionally. It would be a valid ground to bring an impeachment motion against him, although it is unlikely to impeach him since a two-thirds majority of the Parliament is needed for that.

The President apparently thinks that the people’s power based on the last Local Government elections is behind his move. The Unity Government has taken several steps towards reestablishing democracy in the country. The reverse is quite evident given what happened at Rupavahini soon after the swearing in ceremony of Rajapaksa.

In 2003 as well as 2018 what happened was a launch of a movement against liberalist policies. Having considered the present situation of the country, on the economic front, policies such as entering into bilateral trade agreements are the best. However it seems to be that most of the people prefer protectionist policies and they think that those are nationalistic policies, which are not. Most of the influential people have vested interests when they talk about national policies. However they may not mind to have liberal policies with a nationalist outlook. That may be the reason for not having any protest against selling land and reclaimed land to Chinese by the previous Government.

There is an argument that after the UPFA withdrawing from the Unity Government, the President can appoint a fresh PM and a cabinet of ministers. The sequence of events proves that the President was taking that path. However he should act under explicitly elaborated Articles of the Constitution discussed above.

The political issues behind this move were well known to the country. The two stalwarts of the Yahapalana Government did not see eye-to-eye on many an issue. It was reported that the President interpreted recent incidents related to India as an attempt of the UNP to create a rift between him and India. Rajapaksa would be happy if the judicial processes initiated against his close associates could be stalled. These two requirements would have got together to have the present outcome. It is ironical that a person who pledged to abolish the executive presidency is using executive powers visibly in an ultra vires manner.

Removal of Ranil is unconstitutional: Jayampathy

2018-10-28

Parliamentarian Dr. Jayampathy Wickramaratne today said that the removal of Prime Minister Ranil Wickremesinghe was unconstitutional as President Maithripala Sirisena appointed Mr. Wickremesinghe as the Prime Minister of the UNF government on August 21, 2015 and not as the Prime Minister of the national government.

He said that three Ministers namely Tilak Marapana, Wijedasa Rajapakshe and Mangala Samaraweera were also appointed to the Cabinet after 2015 general election. The national government was formed on September 2nd on an agreement reached between the UNP and the UPFA and accordingly the Cabinet was expanded to 42 members.

“This means if and when the UPFA leaves the government status quo remains and the government under Ranil goes back to the UNF Cabinet remained before September 2. Therefore, removal of Ranil from the premiership is unlawful and unconstitutional,” Dr. Wickramaratne who is also a constitutional expert stressed.

Dr. Wickramaratne told a press briefing that had been called by the ‘Lawyers for Democracy’ (LfD) that the Constitution does provides for the removal of the PM only under certain provisions though appointed by the President.

“President can’t sack him only because he does not like his face, his action or his policies. Prime Minister loses his post only after he looses the confidence of the majority of members in Parliament, loses his Parliament membership or the government loses a finance Bill or the budget in Parliament. Under the Constitution, there is no other way to sack him,” Mr Wickramaratne, added.

This move is clearly unconstitutional and undemocratic for the reasons wearers the 19th Amendment has restricted the President's powers in relation to Parliament as well as Cabinet, including removal and appointment of a Prime Minister. Power to remove the Prime Minister, previously vested in the President, was entirely removed by the 19th Amendment, which was introduced to ensure that arbitrary powers exercised by prior executive Presidents could not undermine basic democratic governance. This change was intentional, he emphasized.

Appointment of a Prime Minister under Article 42(4) of the Constitution can arise only when there is a vacancy by virtue of a fresh election, resignation and on the removal consequent to a no-confidence motion. The appointment of Mahinda Rajapaksa as PM is void, given the absence of any of the three above conditions to date, Dr. Wickramaratne said

Prime Minister Wickremesinghe easily defeated a no confidence motion against him with a majority vote of 46 votes on April, 4 in Parliament. The government on last Thursday and Friday passed two finance Bills also, he said. (Sandun A Jayasekera)

UPFA will secure 122 seats in Parliament

Two more UNP MPs to support Mahinda

Nadira Gunatilleke-Ishara Mudugamuwa and Lahiru Fernando-Monday, October 29, 2018

UPFA Badulla District Parliamentarian Thenuka Vidanagamage yesterday confirmed that the UPFA would be able to secure 122 seats in Parliament.

Addressing the media yesterday at the Prime Minister’s Office, MP Vidanagamage said that several powerful UNP Parliamentarians has already expressed their willingness to support the UPFA to form a government.

Meanwhile, UNP Badulla district MP Vadivel Suresh met Prime Minister Mahinda Rajapaksa and extended his wishes on his new appointment. It is reported that Badulla district UNP MP Aravind Kumara and Nuwara Eliya District UNP MP Welusami Radhakrishnan has decided to support Prime Minister Mahinda Rajapaksa.

Earlier, three UNP MPs, Wasantha Senanayake, Ven.Athuraliye Rathana Thera and Ananda Aluthgamage extended their support to Premier Rajapaksa.

According to UNP MP Ananda Aluthgamage, who pledged his support to Prime Minister Mahinda Rajapaksa, more than 20 UNP MPs would join the Government to support the Prime Minister.

He said that Prime Minister Rajapaksa instructed him not to reveal their names for security reasons.

“A few months ago at the time of the No-Confidence Motion against ex-Prime Minister Ranil Wickremesinghe, 21 backbenchers of the UNP were ready to vote in favour of the Motion. But the President requested us to give Ranil Wickremesinghe one more chance to build the country,” Aluthgamage added.

THE CONTINUATION OF THE RAJAPAKSA BLACK DECADE STARTS AGAIN – ANURA KUMARA DISSANAYAKA

28/10/2018

What has been set up is a continuation of the black decade that existed before 2015. This collective has been assembled for an ugly power gamble in the country. We call upon the masses to pay attention to build the broadest center to win their rights says the Leader of the JVP Anura Dissanayaka.

Mr Dissanayaka was speaking at a press conference held at the head office of the JVP at Pelawatta held today (27th).

He said, “This press conference is held today to tell the country the viewpoint of the JVP regarding the political changes that were carried out yesterday night and what could happen in the future.

Ranil’s corruption

We all know that a broad political movement was built for the presidential election in 2015. An immense task was carried out on behalf of this by political parties, civic organizations and citizens. However, the people’s power that was built was totally plundered by Ranil – Maithri ‘joint’ administration and throughout the last 3 ½ years carried out moves against the mandate they received. Ranil Wickremesinghe and Maithripala Sirisena took turns in protecting fraudsters on behalf of their power hunger. The power change in 2015 included the aspiration of the people to build good governance without frauds and corruption. However, Ranil Wickremesinghe and his partners engaged in large-scale frauds completely ignoring the mandate.

The mandate included hopes for minimum relief for the masses who were pressurized with economic hardships and wishes for developing education and health services. However, Ranil – Maithri administration continued to oppress the masses, by plundering their assets, burdening them with various kinds of taxes, increasing prices of essential goods daily. The mandate also included protecting resources of the country and building the economy of the country. However, what was done was to destroying national resources and the two of them carried out an administration for 3 ½ years hindering the mandate. The decisive act of this was carried out by President Maithripala Sirisena on the 26th. He threw away the aspirations of the masses who brought him to power and took the hands of the group that was his enemy.

Rajapaksa’s ‘black decade’ starts again

What does this political occurrence tell us? If people want they could learn a political lesson from one incident that thousand books would never teach them. The incidents show the ugly, shameful, conspiratorial and vicious nature of politics in this country. The Ranil – Maithri joint administration is built in 2015 not due to any need of the masses. Ranil wanted Maithri’s support for power. On Maithri, throughout the campaign, talked about the violence he confronted with as a minister. As such, what he had then too was a personal power hunger. Also, both of them got together in 2015 to form a ‘joint’ government and increased the number of ministerial posts to protect their power portions. Maithri and Ranil took individuals who were accused of frauds and corruption during Rajapaksa’s ‘black decade’ into their cabinet. It was not on behalf of the masses.

The ‘national’ government was formed for their power hunger and not on behalf of the people. They toll the people that the ‘national’ government is formed only for two years. However, this was extended at various times. The pseudo ‘national’ government and extending the term were not the interest of the people. Throughout the past these political cliques though they call themselves political parties, joined, separated, fought with each other and later became friends not for the benefit of the people. It was for their power interests.

It is the ugly, shameful, conspiratorial and vicious nature of this power hunger that was revealed to the people in this country on the 26th. On several occasions President Maithripala Sirisena had said if he was defeated at the presidential election in 2015 a situation had been created that all his family members would not be living. What did he mean? He told the country that if Mahinda Rajapaksa had won all the members of Sirisena’s family would have been murdered. After saying his on several occasions Sirisena has taken the hand of Mahinda Rajapaksa.

‘hitan’, ‘hutan’, ‘appaya’

Normally, in politics what is criticized are political points. However, various shortcomings were used including Sirisena’s way of speaking, mannerisms by Rajapaksa camp to condemn Maithripala Sirisena. Various words such as ‘hitan’, ‘hutan’, ‘appaya’ were used to condemn Mr Sirisena. However, Sirisena and Rajapaksa have joined together now. Did they join together to develop the country economically or find a solution for the various crises the country is confronted with?

They are gathering to form the one that existed before 2015. If so, why was it defeated? The people defeated that regime as it had given the people destructive experienced during the black decade. What has been set up is a continuation of the black decade that existed before 2015. Can Maithripala or Mahinda Rajapaksa present a new politics to the country? Who were around them when Mahinda Rajapaksa was sworn in by Maithripala?

The Presidential Commission appointed by President Maithripala Sirisena investigated 34 points. The Commission named Mahinda Rajapaksa as an accused. There are accusations against Weerawansa, Mahinda Yapa. Are others who were around and who were accused by Maithripala Sirisena’s government such as Basil Rajapaksa, Mahindananda Aluthgamage, Rohitha Gunawardene, Johnston Fernando patriots? Why do they gather to one camp? This collective is formed for the ugly power gamble. The Present President in our country is the most bankrupt president. In January 2015 he polled 6.2 million votes. By the 26th he had lost all of them. Also, Mahinda Rajapaksa polled 5.8 votes against Maithripala. Mahinda Rajapaksa too has opposed the mandate given to him. The President wanted to re-establish his power through the ugly, gluttonous, vicious and conspiratorial process. Why did he come out of the government if the country could be developed with Mahinda Rajapaksa?

Why does Mahinda contribute to this? Mahinda’s camp was in a very difficult state without power. Several cases against him and his family members are to be heard in November. Also, those who have tasted power and had been mentally and physically broken down wanted power. That’s why they sought matrimony with Maithripala. It has been proved that they would take an ugly, vicious, conspiratorial move on behalf of their need for power.

We ask the people to understand that the aspirations of 6.2 mandate of 8th January 2015 do not belong to Maithri or Ranil. Ranil as well as Maithri have betrayed the mandate. A new political camp that would be responsible for the mandate and take the country towards a new direction should be built. We, as the JVP, are building such a political front. This power gamble should be stopped. For this, the people should understand what correct politics is.

Members of Parliament will be auctioned from today

Members of Parliament will be auctioned from today. They are to be auctioned like stale vegetables and rotten fish at village fairs. You would be able to see the MPs who would be auctioned. They shouldn’t be given the future of your children or the future of the country. This political occurrence has given the people a good opportunity to learn about politics in this country. We call upon the people to study the situation and learn what is needed. The President should have convened the parliament if he had completed his political gamble. The Prime Minister is appointed by the majority in parliament.

The Parliament has been prorogued conspiratorially. It is learnt that he is about to leave for China. He became president talking about non-violence, abolishing executive presidency and saying he would be the last executive president in the country. Now his actions are completely contrary to what he had said. The Parliament should be convened immediately. Convening Parliament during a political crisis is a right of people’s representatives. The Parliament has been prorogued to complete Maithripala’s conspiracy. According to the Constitution, the President could prorogue Parliament after a three day’s notice. We vehemently oppose proroguing Parliament. We call upon the people in the country to rally to build the broadest center to struggle for rights and against proroguing Parliament”

Lanka Truth

With this man-made Constitutional crisis, economy will be the casualty; resolve it quickly or peris

The President, while removing Prime Minister Ranil Wickremesinghe from office, has appointed former President Mahinda Rajapaksa to the post


Two prime ministers without a Government


 Monday, 29 October 2018

The political change that took place in Sri Lanka last week has driven the country to a constitutional crisis. The President, while removing Prime Minister Ranil Wickremesinghe from office, has appointed former President Mahinda Rajapaksa to the post. A crisis has been created because Ranil Wickremesinghe has maintained that he is still the Prime Minister in terms of the Constitution. This is being refuted by those supporting Mahinda Rajapaksa. Thus, Sri Lanka now has two Prime Ministers appointed by the President in two points of time.

But the reality has been that there is no properly constituted Government in the country, except the executive power being exercised by the President. That executive power has a limitation and cannot go on forever. Since Parliament does not meet, the symbiotic relationship between the legislature and the real executive has been severed. Thus, in terms of good governance, there is a blurred and grey mark in the country’s constitutional setup. This is unprecedented in the history of Sri Lanka and whatever its outcome, it has far-reaching social, political and economic consequences.

Manifestations of economic crisis: slowed down economic growth

This has happened when the country’s economy had been in deep trouble. Except on the inflation front where the nationwide inflation has now receded to near zero level, all other economic indicators have demonstrated signs of a chronically and acutely ailing economy. Economic growth has continued to slow down from above 8% recorded immediately after the end of the war in 2009. It fell below 5% in the two years beginning from 2013 and below 4% in the last two years.

The most optimistic growth forecast for the next five year period has been about 4.5 to 5% per annum on average, pretty much below the rate of 9% needed for Sri Lanka to advance itself to a rich country within a generation. Hence, the dream of Sri Lankans to enjoy the fruits of a rich nation is getting blurred day by day. It is a big disappointment for a nation which has struggled to push itself up along the path to development.

Unmanageable budget

On the fiscal front, the overall budget deficit has been high, stubbornly above 5% of the total size of the economy, called the Gross Domestic Product or GDP. This is despite the many pledges by all Governments in power to cut it down to below 4% of GDP progressively. The target for 2018 had been 4.8% of GDP, but it is likely that it would end up at around 5.3%.

The unfavourable corollary of this sad outcome has been the continuous increase in the borrowings of the Government not only to finance the deficit but also to repay the loans and pay interest on them. It has trapped the country in a vicious debt cycle. Despite this, the Governments have been promising more and more unproductive expenditure programs to keep the electorate happy.

The year 2019 will be worse for Sri Lanka since, as it is, there will not be a proper budget. It has been announced that the Government is planning to have a temporary vote on account to maintain essential public services for three months. Without a proper budget, it will not be possible for Sri Lanka to attain and maintain budgetary discipline, a goal of both the Rajapaksa and Wickremesinghe administrations. It will convert the bad budgetary situation to worse in the next few years. This will not be viewed favourably by both the domestic and foreign investors.

Worsened external sector

In the external sector, foreign exchange earnings in the form of export of goods and services and money sent by Sri Lankan workers abroad, called inward remittances, have been stagnating against a background of rising commitments for payments for imports, interest on foreign loans and Sri Lankans’ taste for travel abroad, etc. The resultant foreign exchange gap has put pressure on the exchange rate continuously. As a result, the value of the rupee is lower in terms of the benchmark currency, the US dollar, at the end of each year from the value it had at the beginning of the year.

Thus, the exchange rate has been the most popular ‘ball game’ played by all political parties. When they are in the opposition, they blame the Government in power for allowing the rupee to fall, implying that it is due to their bad economic management. But when they are in the Government, they justify its fall tooth and nail. Yet, like the caravan that moves while the dogs are barking, the rupee too continues to fall in value month after month because no proper remedial measures are taken by Governments driven by a populace that wants to import more and produce less.

Any money given to them through liberal Government spending is immediately spent on imports rather than on investment. Recently, I asked MBA students of a State university what they would do if they are given Rs. 10 million each. The answer was unanimous that they would buy a car or travel abroad or spend that money to buy various electronic equipment that has become the fashion of the day. With that type of mentality, the increased income through expanded Government expenditure programs, financed of course by borrowing or printing new money, would end up as incomes of people in other countries. Thus, the pressure for the rupee to fall in the value in the market is unavoidable.

Economy will be the casualty

Against this background, if the country is hit by a Constitutional crisis where there is no Government or if there is one, a weak Government for that matter, the economy cannot recover from the depth to which it has fallen. The longer the crisis, it is worse for the economy. Hence, it would worsen the present economic crisis.

It is an instance where the economy has been subject to ‘double prejudices’, the first being the slowing down of the economy and the second, the reinforcement of that trend by the on-going constitutional crisis. This is, as the local proverb says, like the man fallen from the tree is being attacked by a bull as well. Who is to suffer at the end? It is the people of Sri Lanka who are already frustrated about the country lagging behind even those which had been below it a few years ago. The most often quoted examples are Vietnam and Bangladesh, which are presently moving ahead of and faster than Sri Lanka.

Protect the property rights 

How will a constitutional crisis affect an economy? An economy is made up of thousands of small economic units that produce goods or services for use by people. Some goods are consumed locally, while some others are exported for consumption by foreigners. To continue in production, all these units need to invest new money to replace the capital that has worn out as well as expand the production capacity so that they can produce more. People will do so only if they have trust in the economy. This is specifically applicable to foreigners who are planning to invest in Sri Lanka. Those who invest in new buildings, machinery, factories or farms have a right to possess those investments and enjoy the fruits of those investments. Economists call this ‘property rights’.

Investors, both local and foreign, have trust in the economy only if their property rights are protected through a proper legal, law enforcement and dispute settlement system. If someone can seize my property with total impunity and against my will or without compensating me, I have no incentive to invest and have new properties under my ownership. Property rights are protected by having a properly drafted constitution and everyone in power honouring the provisions of that constitution. It should be done not in letter but in spirit. If this is violated, markets face uncertainty. And markets do not like uncertainty.

Markets deliver the opposite of what the policy planners’ desire

When markets confront uncertainty, they overreact. They try to bring balance back to the market by producing what policy planners do not want to have.

For instance, if the policy planners want to have the exchange rate fixed at a certain level, they have to supply continuously foreign exchange to the market to fill the gap. If the pressure is for the rate to depreciate, because there is a higher demand for foreign exchange than the availability, an uncertainty is created in the market. When foreign exchange is supplied to the market by the central bank, market participants knowing that they could buy foreign exchange at a given price in unlimited quantities, will continue to buy more. Hence, more is to be supplied by the central bank to meet the growing demand. It will be a futile attempt, like watering a sinking well. Sooner or later, they lose foreign exchange balances gradually reducing their ability to keep the market supplied. At that point, the market hits back mercilessly and the exchange rate would be exactly opposite to what the policy planners did not want.

This happened to Sri Lanka in 2001, 2009, 2012, 2016 and now in 2018. On all these occasions, Sri Lanka lost foreign exchange; at the same time, it could not fix the exchange rate at a given level. Instead, the exchange rate depreciated even beyond what it had been previously.

Thailand too had the same experience in 1997. In order to fix the baht rate at 25 baht per dollar, Thai Central Bank, the Bank of Thailand, wasted $ 25 billion by supplying to a market with a voracious demand for dollars. After losing all its reserves, it had to allow the baht rate to have a free fall and it ended at 50 baht per dollar overnight. That destabilised Thai private sector which had borrowed heavily in foreign currencies and Thai commercial banks which too had more borrowings in foreign currencies than the holding of same, a situation called having a ‘short position’ in bankers’ terminology. How did the market which did not like uncertainty hit back? By bankrupting both private companies and commercial banks and bringing in a general economic collapse.

Uncertainty is the biggest threat

Hence, uncertainty is the biggest threat to any economic system. It frightens people and the fright drives them to a general panic. Those in panic do not see logic or reason. The illogical and unreasoned people begin to do more mistakes in the form of wrong reading of economic events, overreacting to general situations and accepting extreme proposals to cover losses. All these actions on the part of people will create more uncertainty and that more uncertainty will make them more panic. Hence, both panic and uncertainty begin to self-feed each other. Eventually, it would be disastrous to the whole economy.

Two warring parties oblivious of the impact on the economy 

The present Constitutional crisis, if prolonged, would also bring in the same results. The two factions led by Ranil Wickremesinghe and Mahinda Rajapaksa are at war with each other. Each party claims having majority power but it can be established only through a vote in Parliament. Since Parliament has been prorogued by the President for a different reason, there is no opportunity for them to show their strength and put a stop to the uncertainty.

The corollary of this man-made uncertainty is simple. The two parties can get into verbal attacks, appear before media and do the same and bring in supporters to Colombo show strength. These are practically costless moves because they do not require the warning parties to spend real resources. However, as the experience has shown, the more the two factions may do so, greater the degree of panic to which they would drive people. Since this is to go on for some time, it keeps people in suspense. People in suspense do not have productive engagements except continually expressing their fears to each other. Hence, it is the economy that suffers and not the parties that are at war.

FDIs and credit ratings will be affected 

At this point in time, Sri Lanka very badly needs foreign investments to fill the gap in the foreign exchange requirements through a source that does not add to debt, on the one hand, and acquire new technology, on the other. It would also add new capacity to Sri Lanka’s economy facilitating it to produce more goods and services. Both will improve the wellbeing of the people. As mentioned before, foreign investors need a stable government to protect their property rights. If there is none, they would simply withdraw from the country. This will also cause rating agencies to downgrade Sri Lanka’s rating from the present ‘B1 negative level’ making it more costly for the country to raise foreign loans from the market.

Hence, the present Constitutional crisis should be resolved as quickly as possible paving way for the establishment of political stability in the country.

(The writer, a former Deputy Governor of the Central Bank of Sri Lanka, can be reached waw1949@gmail.com.)   

Let PM demonstrate parliamentary confidence

By Arjuna Ranawana- OCT 28 2018

There were clear signs that the troubled Yahapalanaya Government was in serious trouble and was closing in on becoming completely dysfunctional in the ten days or so before the dramatic announcement that the former President Mahinda Rajapaksa had been sworn in as the new Prime Minister by President Maithripala Sirisena, and the incumbent Ranil Wickremesinghe had been sacked.

Over the past few days disagreements between the United National Party and the Sirisena faction of the Sri Lanka Freedom Party spilled out into the open and some of the comments that have been aired are quite nasty.

There was a spat over the East Terminal of the Colombo Port which the UNP led by Ranil Wickremesinghe wants to invite India to take over. But President Sirisena and Ports Minister Mahinda Samarasinghe opposed that move, saying that the Terminal should not be handed over to anybody else but Sri Lanka should develop it.

The argument inside Cabinet came to the point when Sirisena apparently accused an Indian national embroiled in the alleged plot to assassinate the President as being an agent of the Indian external intelligence arm, the Research and Analysis Wing (RAW).

The news was leaked allegedly by some members of the Cabinet and caused an international incident which was papered over after Sirisena called Indian Prime Minister Narendra Modi and settled the matter.

Then Minister Mahinda Amaraweera, the United People’s Freedom Alliance General Secretary accused four UNP Cabinet members of being RAW agents, prompting the UNP’s hit-man former Army Commander Sarath Fonseka to call him ‘insane.’

Although there had been rumblings of discontent between the two parties the invective had not risen to these heights at any stage in their troubled relationship.

So, it was not exactly a surprise for political watchers when the UPFA decided to withdraw from the alliance effectively collapsing the Government, but the real shocker was the appointment of Rajapaksa to replace Wickremesinghe.

The sacking of Wickremesinghe came in the form of a brief letter in which the President stated that as the person who has the power to appoint the Premier under Article 42(4), he also has the power to remove him from office.

The move has caused a deep division among the legal community in the country.

Former Chief Justice Sarath. N. Silva, an Adviser to Rajapaksa, says the Executive is vested with the powers to appoint and remove the Prime Minister because this clause was not removed from the 19th Amendment.
MP Namal Rajapaksa, also a lawyer and the clan’s heir-apparent, Tweeted “Following withdrawal of UPFA from Gov, Cabinet is dissolved and post of PM is vacated as per Article 48(1). President followed his mandate under Article 42(4) of #SriLanka Constitution to appoint a new PM.”

Constitutionalist Dr. Asanka Welikala in an article widely shared on Social Media disagreed. He said that the manner in which Rajapaksa was sworn in has ‘taken the country by total surprise,(and) point to some extremely questionable motives.’

He adds,  “President seems to have taken these words (in Article 42(4)) rather too literally than is constitutionally permissible. When this provision speaks of the President’s opinion, it contemplates not the subjective and personal opinion of the President as to which MP is best suited to be Prime Minister, but an objective and constitutional view formed by reference to who can command the confidence of Parliament.”

Nineteenth Amendment applies

He says that after the Nineteenth Amendment was enacted in 2015, “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 President’s address of Parliament, the budget, or a vote of no-confidence (Articles 46(2) and 48).

As the Constitution after the Nineteenth Amendment specifies these ways in which the Prime Minister ceases to hold office, and has impliedly removed the previous power of the President to remove the Prime Minister at will, it follows that there are no other ways in which this can happen. In particular, the President can only appoint another Prime Minister where the serving Prime Minister has lost office in any one of these ways.”

Wickremesinghe stuck to his guns declaring that he is still the Prime Minister of Sri Lanka. Addressing a Press Conference in the PM’s official residence Temple Trees he said for “anyone to be appointed as the Prime Minister, he should show a majority in the Parliament. The person who can show a majority will be the Premier.”

Wickremesinghe’s own coalition seems to hold together as he was flanked by the leaders of the smaller parties supporting him.

However, Rajapaksa’s supporters said Wickremesinghe should step down. “He should leave Temple Trees by Monday,” Professor G. L. Peiris of the Sri Lanka Podujana Peramuna told reporters yesterday (27).

Unsurprisingly President Sirisena prorogued Parliament from yesterday until November 16, two days before Rajapaksa’s 73rd birthday. One of Rajapaksa’s supporters former Minister Dinesh Gunewardena said that this period will allow his leader to “settle down.”

In the immediate aftermath of Rajapaksa’s appointment saw ugly scenes at the two Government-run Television stations Rupavahini and ITN. Outsiders, described as musclemen led by MPs supportive of Rajapaksa forced themselves into the institutions. Later in the evening Finance and Media Minister Mangala Samaraweera, Health Minister Rajitha Senaratne, his son Chathura and Law and Order Minister Ranjith Maddumabandara arrived at Rupavahini.

There they insisted that they be allowed to make statements on live TV but the Duty Officer decided to switch off the broadcast before the usual time. In the ensuing argument the outsiders reportedly attacked the younger Senaratne and booed and insulted him.

There were also firecrackers lit as the news spread and in the morning Rajapaksa supporters distributed kiribath to passing motorists in some areas.

After the shock of October 26th for three weeks Sri Lanka will be mired in a Constitutional crisis.

Welikala, who works for the University of Edinburgh pointed out “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.”This he said “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.

Until one of these persons – Mahinda Rajapaksa or Ranil Wickremesinghe – can demonstrate that he has the confidence of Parliament through the support of a majority of MPs, and force the President to accept the will of Parliament, the crisis will not be resolved.”
Let’s hope that happens sooner rather than later.

Two Constitutional Coups applauded by two different social segments

2018-10-29

eather would be stormy and rainy in the next few days to come, said a forecast last Saturday. It would not be much different in the political arena as well. Opening up more and better space in promoting the “Crown Prince” began with a “Constitutional Coup” on Friday last week in the night, that seeks to oust, sitting PM Wickremesinghe and his government. Whole world was caught unawares when the de facto leader of the Sri Lanka Podujana Peramuna (SLPP), more popularly known as the “Pohottuwa” party, Mahinda Rajapaksa, was sworn in as PM, by President Sirisena. The path to power is thus widened for Namal Rajapaksa, this time with more grooming and better positioning in all probability. Yet in a way, it wasn’t surprising either. Sirisena played “Judas” almost four years ago, and he played it once again. No change of principles here.

The process began with a letter signed by Minister Mahinda Amaraweera as General Secretary of UPFA, informing the PM, the UPFA would no longer be a partner of the present government. This was in fact to say, the ‘yahapalana’ government is no more a “National” government, and that PM Wickremesinghe will thus have no majority on his own. Yet the MoU for a “National” unity government was signed between the UNP and the SLFP and not between the UNP and the UPFA. But the political factor that goes beyond the technicalities and legal interpretation is that, once the UPFA withdraws, SLFP a constituent party that contested under the UPFA goes along with it and out of the “National Unity Government”.

With that it is assumed, PM Wickremesinghe is restricted to 106 votes in parliament including the 12 MPs from SLMC and Rishad Bathiudeen’s ACMC, which is not the majority in the 225 member parliament. For Ranil to prove he has a controlling majority, he would now have to depend on the TNA, while the JVP has already said, they would not support either side in this Constitutional conflict. TNA itself is in a dilemma. Though Sampanthan and Sumanthiran blindly believed Ranil Wickremesinghe led government would deliver on the promise for a new Constitution with more devolved power than under the 13th Amendment, especially the Northern and Vanni Tamil people live with much disappointment and growing frustration with this government, as they were with the MR government. Thus, with Wigneswaran, now tipped to lead a new political party in the North with a campaign on Tamil people’s unsolved issues, how many TNA MPs would now vote with this government to save Ranil is very much a riddle.

All that counted, President Sirisena went ahead with the “deal” that was worked out over dinner at S.B. Dissanayake’s residence, early this month. Mahinda Rajapaksa was sworn in as PM under clause 42(4) that says,“The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.”Most “democratic and civil rights” campaigners forget, that this very same clause was used on January 9, 2015 to swear in Wickremesinghe, then Leader of the Opposition as PM with only 43 MPs behind him and while D.M. Jayaratne was still the PM with a majority in parliament.

"For Ranil Wickremesinghe to prove he has a controlling majority, he would now have to depend on the TNA, while the JVP has already said, they would not support either side in this Constitutional conflict"

It is now known that in January 2015, PM Jayaratne was coerced and manipulated to provide a back dated resignation letter to fit in with Clause 46(2)(a) of the Constitution, while this time, President Sirisena removes Ranil Wickremesinghe with a single sentence using the same Clause 42(4) that has to be read along with Clause 46(2)(a) to have Constitutional meaning proper. It wasn’t done that way then in January 2015 and it wasn’t done now. And in both occasions, it remains a “Constitutional coup” in changing political power without the consent of the people and by using the Constitution the wrong way that violates the “sovereignty of the people”. In these “Constitutional Coups” it is always pre-decided to get back to the Constitution thereafter with a majority negotiated and manipulated in parliament to be in line with Clause 42(4). In January 2015, this blatant violation of the Constitution was applauded and accepted by the Colombo “civil society” leaders while the Sinhala Buddhist majority was left numb and helpless. Now in October 2018, the lower layers of the Sinhala Buddhist society light crackers and enjoy “kiribath,” while the Colombo“civil society” leaders remain dismayed and helpless. In both instances, the “sovereignty of the people” wasn’t even thought of as non negotiable.

There is yet a political factor that makes October 2018 different to that of January 2015. In January 2015, the Constitutional Coup was played out with the euphoria in Colombo over ousting President Rajapaksa, whose rule was painted black in a single stroke. That violation of the Constitution was applauded and accepted by the urban middle-class as a step towards furthering “democracy”. In October 2018, the Constitutional Coup is still in play endorsed by the Sinhala Buddhist majority and with the Colombo middle-class, though frustrated and betrayed by this “Unity” government, still prefer the Wickremesinghe-government to any led by Rajapaksa. Unfortunately for the UNP this urban middle class remains passive and would not intervene as a political force to save the UNP government.

This ‘October Constitutional coup’ is thus played out within the parliament, for which the parliament now remains prorogued. It is certainly a time buying factor to increase numbers. It cannot be now turned around with “international pressure” as the UNP leadership wants to. Every hour Rajapaksa is consolidating himself as PM though outside Temple Trees. He probably had India and Modi neutralized with his most recent trip to New Delhi. He was greeted as PM and wished by the Chinese Ambassador in Colombo. Statements made so far by other important Western countries that the UNP banks on, have only asked for peace and to adhere to the constitutional process. Sadly, they mean very little to a PM who banks on the Sinhala Buddhist majority.

In short, with the UNP not pinning faith on their own supporters to challenge this Constitutional Coup and the urban middle class stay grumbling in their comfort zones, while Rajapaksa fiercely usurps power within a seemingly constitutional process, the final result is almost there at our doorsteps. He is with 95 MPs that he campaigned and brought to parliament in August 2015. Whatever is being said about Muslim and plantation sector representations in parliament, with Rajapaksa consolidating himself, they can and will change positions. This parliament is not one with firm loyalties. We have politicians who have not only jumped over fences, but have crept through fences. Politicians who have crossed over to be Ministers in every government since 1994. Politicians the people vote to parliament every time they cross over. 

This certainly would leave us with a Constitutional coup that would be endorsed in parliament with a manipulated majority that in essence is a violation of people’s sovereignty, the people do not perceive as such. The promise therefore would be to give the people their sovereign right to elect a new government, perhaps early next year. That would be applauded too in this society.

Sri Lankan Lawyers requests President to revoke the decision

The President should immediately revoke the prorogation or summon parliament so as to de-escalate the constitutional crisis created.

( October 29, 2018, Colombo, Sri Lanka Guardian) The Lawyers for Democracy (LfD) has called upon President Maithripala Sirisena to respect democracy and revoke his decision to prorogue Parliament. The LfD says the 19th Amendment has curtailed the executive powers of the President in respect of Parliament, the Cabinet and the removal of the Prime Minister.

The LfD media statement:

On 26 October 2018, President Maithripala Sirisena purported to remove the existing Prime Minister Ranil Wickremasinghe and purported to appoint Mahinda Rajapakse MP as the new Prime Minister. Having examined the legal position, LfD concludes that this move is clearly unconstitutional and undemocratic for the following reasons:

a) The 19th Amendment has restricted the President’s powers in relation to Parliament as well as Cabinet, including removal and appointment of a Prime Minister. Power to remove the Prime Minister, previously vested in the President, was entirely removed by the 19th Amendment, which was introduced to ensure that arbitrary powers exercised by prior executive Presidents could not undermine basic democratic governance. This change was intentional.

b) The concept of a Unity Government, set out for first time in the 19th Amendment, is not linked to the Appointment or Removal of a Prime Minister. There is no direct consequence of ending a Unity Government for the dissolution of Cabinet or removal of the Prime Minister.

c) Appointment of a Prime Minister under Article 42(4) of the Constitution can arise only when there is a vacancy by virtue of a fresh election, resignation and on the removal consequent to a no-confidence motion. Thus the appointment of Mr Mahinda Rajapakse as PM is void, given the absence of any of the three above conditions to date.

d) Interpretation Ordinance provision that the appointing authority can remove the Prime Minister has no application here as there is a specific procedure for removal of a Prime Minister specified under Article 46 of the Constitution.

e) Any further actions by the President to appoint Ministers without the advice of a constitutionally appointed Prime Minister also lack legality and are void.

LfD believes that the current constitutional crisis over the PM post must be democratically and peacefully resolved before a court of law or on the Floor of the Parliament through demonstrating majority support for either Prime Minister Wickremasinghe or Mr Rajapakse. However, the President’s actions to prorogue Parliament until 16th November 2018 deprive the Parliament from taking up and resolving this matter. The context in which the President has acted is contrary to very essence of the 19th Amendment and basic fundamental values of the constitution. The action of the President, a reminiscent of a constitutional coup, is also contrary to the mandate given to the President at the 2015 January Election.

The President should immediately revoke the prorogation or summon parliament so as to de-escalate the constitutional crisis created. To fail to do so will be in breach of his responsibilities under the 19th Amendment to uphold the Constitution of Sri Lanka.

Ranil holding on to power unconstitutional, undemocratic

By Laksiri Fernando-October 28, 2018

The present turn of events undoubtedly is not ideal for the country, but perhaps inevitable. If the UNP could have changed the leader, Ranil Wickremesinghe, as he was straying away from democratic norms and interests of the country, it would have been a better option, much earlier than the present. However, that was unfortunately not the situation given the poor internal democracy within our political parties. Equally worrying is the appointment of Mahinda Rajapaksa as the Prime Minister though it is constitutional.

The following was what a defiant UNP MP and a State Minister, Vasantha Senanayake, has told the media.

"It is with relief that I welcome the change of a most shameless and selfish man that ruined the great party built by my ancestors and damaged seriously, the wellbeing of our motherland. I pledge my support to the Prime Minister and congratulate the President for his wisdom."

Failures of Ranil as PM

There were three major instances where Ranil should have resigned and allowed another leader from the UNP to become the PM. But he didn’t. First was the bond scam (or robbery) where he was directly implicated with his friend Mahendran. Second was when the UNP under his leadership was roundly defeated at local government elections countrywide in Feb, 2018. Third was the rejection of his proposal to sell the East Terminal of the Port of Colombo to India even without an insistence from India.

In all these instances he held on to power under different excuses. Ambassador to China, Karunasena Kodituwakku, also recently revealed that the Hambantota Port had been given to China even without their request or insistence. It was called a ‘debt-equity swap’ in Wickremasinghe’s parlance. He was apparently either working on an extremely strange economic theory or against the national interests of the country for some reason.

While accusing the last government of taking excessive foreign loans, Wickremesinghe took more loans than the previous government. His government’s record of corruption is the same. The failure to hold elections on time has been the most damaging to the democratic system. President Sirisena is also culpable for these violations without taking necessary action previously. The ambiguous or diarchic 19th Amendment is one reason for this situation, whether it is done purposely or not.

Questionable democratic credibility?

Wickremesinghe cannot claim to be a democrat. If he is a ‘liberal,’ it is a strange variety. He has skeletons in his cupboard. He is quite equal to Mahinda Rajapaksa. The difference might be in the guts or public appeal. Now, he questions the appointment of Rajapaksa as the PM, on the basis he was holding a majority in Parliament before. However he didn’t have any hesitation to be sworn in as the PM in January 2015, under similar circumstances. Was it democratic then?

We know that numbers in our parliamentary system are largely manipulated. The root of the defect is within the electoral system and in the rotten political culture. People had some hopes when they ousted President Rajapaksa in 2015. However, they were largely dashed as RW started manipulating things for narrow political gains. The return of MR today is largely RW’s fault.

People wanted a democratic 19th Amendment instead of the dictatorial 18th Amendment. To meet the demand, certain positive changes were enacted. But stealthily, autocratic elements were introduced. Strengthening the powers of the PM is not the answer to excessive powers of the President. That is what has been attempted though not that successfully. The funniest aspect of our constitutional change is that it is the same Members of Parliament who enacted the 18th Amendment that endorsed the 19th Amendment overwhelmingly!

People like Wickremesinghe knew the situation. Therefore, he manipulated the Constitution, with the support of some naïve leftists. Constitutional amendments or changes should not be enacted to suit personalities. That, however, is what was done even in 1978 with Wickremesinghe’s connivance. At least, JR was in a position to go before the people and win a popular election. Wickremesinghe is not or hesitant. That is why he changed the Constitution to suit his circumstances through the 19th Amendment.

Constitutionality of the move?

Because of the ambiguous nature of the 19th Amendment, the decision to remove Wickremesinghe as the PM has now become a controversy. However, until this matter is settled amicably or in the Supreme Court, the President’s decision has to be upheld. Otherwise, the country would be plunged into unnecessary chaos. Wickremesinghe appears to claim he is the arbiter in deciding on the constitutional issue. He does not want to go before the Supreme Court.

President has appointed Rajapaksa according to Article 42 (4) as follows, although some have argued that the President has taken the phrase ‘in his opinion’ too literally.

"The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament."

It is now incumbent upon Rajapaksa to prove he has a majority in Parliament after 16 November as the Parliament is prorogued until then. The Speaker now grumbles that he was not consulted in proroguing Parliament though it is not a constitutional requirement.

The question still remains whether the removal of Wickremesinghe is constitutional. If the President has appointed a new PM that implies that the incumbent is no more with or without informing in writing. That is how Wickremesinghe became the PM in January 2015 and no one raised the question of the constitutionality of the presidential move then. However, this time the following letter has been issued to Wickremesinghe.

"While I had appointed you as the Prime Minister of Sri Lanka as per the powers vested in me as the appointing authority in Article 42 (4) of the Constitution of the Democratic Socialist Republic of Sri Lanka, I hereby inform you that you have been removed from the office of the Prime Minister of the Democratic Socialist Republic of Sri Lanka with immediate effect under the powers vested me."

‘Under the powers vested in me’ is the key phrase. What are they?

19th Amendment

There is no question that many of the powers of the President have been reduced under the 19th Amendment. However, nowhere it says he cannot remove the PM. There are two Articles where removal is mentioned directly and indirectly.

First is Article 47 (2) which says "Notwithstanding the death, removal from office or resignation of the Prime Minister, during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall continue to function with the other Ministers of the Cabinet of Ministers as its members…"

This is, of course, during the intervening period, as is clear from above. However, this is a proof that the possibility of removal is still there even after the 19th Amendment. There is no hard and fast rule on this matter.

Second is Article 48 (1) which says, "On the Prime Minister ceasing to hold office by death, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved…"

This is about the circumstances under which the Cabinet of Ministers stands dissolved. At the same time, it implies other circumstances under which the PM ceases to hold office other than death and resignation. These could be the circumstances of appointment of a new PM under Article 42 (4), a successful no-confidence motion in Parliament, defeat of a budget proposal or a direct removal by the President.

Other Powers of the President

It is a mistake to rely too much on the 19th Amendment or consider the 19th Amendment in isolation of other provisions of the constitution. Primary among them is Article 4 (b) which says,

"4. The Sovereignty of the People shall be exercised and enjoyed in the following manner:… (b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People."

However much Wickremesinghe fans would like to believe otherwise, the reality or the constitutional position is that ‘sovereignty of the people in the executive sphere is held by the President.’ Therefore, the position of the PM is subordinate to the President, however much he is educated, westernized or competent in dealing with the ‘international community.’ I say this because, behind the conflict between the President and the PM, there are class and cultural aspects involved.

Another mistake some of the Wickremesinghe biased constitutional interpreters have made is trying to read too much into the 19th Amendment’s changes. For example, when the present Chapter VII is compared with the original Constitution (1978), the changes may appear enormous. But still the powers of the President are considerable, unfortunately. For example Article 30 (1) still says,

"There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces."

It is true that some of the functions of the President are formulated not as ‘powers’ but as ‘duties.’ Thus the moral initiative is strengthened. Among other matters, those include "to ensure that the Constitution is respected and upheld," "to summon, prorogue and dissolve Parliament," "to declare war and peace," "to do all such acts and things, not inconsistent with the provisions of the Constitution." These are only some highlights.

More importantly, "The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution."

Therefore, the President is also duty bound to follow the majority decision of the Parliament when it commences on 16 November. For this to happen, the Speaker should remain independent despite his past party affiliations. That would be the crucial test of President’s controversial decision to remove Wickremesinghe and appoint Rajapaksa. More than the removal, the appointment of Rajapaksa is the controversial action which has to be justified through a majority in Parliament.

Political Justification

There are two main reasons given for the change or reshuffle of the government. First, the formal withdrawal of the UPFA/SLFP from the ‘national government’ after which the Cabinet may stand dissolved, under Article 46 (4 &5) and Article 48 (1) though the drafting of the conditions of the ‘national government’ is extremely sloppy, whether it was done purposely or not.

Second is what the President has revealed yesterday as reported by The Sunday Times (28 October), as follows.

"President Maithripala Sirisena said last night that the main reason he decided to form a new government with Prime Minister Mahinda Rajapaksa was the plot to assassinate him. He claimed that the name of Field Marshal Sarath Fonseka had surfaced during investigations by the Criminal Investigation Department, but it was suppressed due to political interference."

The above also may be the reason why the UPFA/SLFP withdrew from the ‘national government’ at this stage. The situation undoubtedly is a national security risk if it is correct.

The best for the country is for Wickremesinghe to go before Parliament when it is convened, and show that he is correct, but not by stubbornly holding on to power when he is constitutionally removed and replaced. He should further prove the newly appointed Rajapaksa has no majority. Lust for power or naivety is not an alternative to patience or wisdom. Wickremesinghe should frankly ask the question himself whether he has the support among the people in the country to challenge his removal.