Supremacy Of The Privileged Or Supremacy Of The People? 

By Shyamon Jayasinghe –DECEMBER 2, 2018

Shyamon Jayasinghe

“He appointed a fake cabinet and fake cabinet meetings are being held taking fake decisions that had the everpresent danger of being challenged by a citizen.”

Sri Lanka’s Long Tradition of Democracy

The supremacy of the people stands as the corner stone of any democracy. The idea behind democracy as a concept in governance is that people ultimately decide the way they are governed. Democracy is a clear repudiation of the opposite concept where one man or a close elite of privileged persons take the decisions. True, a democracy can deteriorate into some sort of elite control after elections and this is not uncommon. On the other hand, the system allows for the people who, by revolt or otherwise, can bring such dysfunction under control. Bad governments are unseated at election time and the Opposition and media have the freedom to expose all erratic and corrupt rulers. Speaking in basic terms, Sri Lanka has enjoyed these freedoms for over 80 years since the Donoughmore constitution was introduced to the then island colony. Alas! on that dreadful Friday of the 26th October this great tradition (longest for any Asian country) was delivered a blow of huge proportion.

The challenge to peoples’ supremacy came from none other than the highest in the land. None other than President Gamaralalage Maithripala Sirisena who, as common candidate of democratic forces, ushered in an era of promise that the rule of law and law and order will replace a lawless President and government. The promise of yahapalanaya was a just social order derived from law and order and accountability to the people.

On that tragic day, President Sirisena, abrogated the constitution and began acting like a dictator. It was obvious he knew he was violating the constitution; he had the facility under secion 129 to consult the Supreme court if the action he was contemplating was acceptable in terms of the constitution. He did have recourse to that  on a previous occasion when he wanted to be clear if he could have his term extended. This time, the President deliberately avoided that clarification because he had something sinister planned. He sacked the Prime Minister, Ranil Wickremesinghe, which he had no authority to do. He appointed his former rival, Mahinda Rajapakse who the people had rebuffed in 2015. That was bad in law, again, and it also carried the evident risk of him being publicly shamed. Here was a total reversal of the mandate given by the people in 2015.From then on, the President went on a a serial breach of the constitution-one by one- thus leaving us all puzzled as to the end of this  algorithm. He suspended the constitution. He dissolved Parliament. These acts were illegal. He appointed a fake cabinet and fake cabinet meetings were held  presided by Sirisena, taking fake decisions that has the everpresent danger of being challenged by a citizen. For instance, the tax reductions and the agreement with China can be challenged. For six times  in a row Parliament made it abundantly clear that the fake government does not command any any parliamentary support. The speaker announced that  he cannot recognize as legal the new PM or his cabinet. Yet, it was not the President who listened. 

Mahinda is Equally Guilty

It is clear that President Sirisena cannot do all this alone by himself. He acts in conjunction and support from former President, Mahinda Rajapakse. Mahinda and his crooked men are equally accused of crime against the constitution. Not a single so-called Minister can be absolved from this responsibility. They are all guilty of a dastardly illegal and indecent act against the people. If Sri Lanka survives this crisis, retribution will come their way.

Mahinda  Rajapakse did have quite an electorally-wide attraction. This acquired -charisma was a result of the common perception that he had real character, which he employed to drown the LTTE in Nandikadal. That social capital he has destroyed by now. He who wore the face of a courageous lion is now looking rodent-given to winning by cheating.

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Samanalun, Godayas and Our Words

PASAN JAYASINGHE-12/01/2018

When I first heard the word samanalaya used, it was not directed at me. And yet, it was. It was so innocuous – someone said that a name for some team we were part of sounded like a name that butterflies would use, and that we wouldn’t want that, oh no.

For a split second, I was completely lost. The second that followed, when it finally clicked, was one of warm bemusement – what an adorable name for a slur, I thought. It was only when everyone else started laughing with polite smirks that reality kicked in. Immediately, I started going through the motions. Regulating the body – posture, voice, hands – while joining in on the laughter, to give nothing, absolutely nothing away.

This ritual is second nature to my kind, practiced daily. We live in a perpetual state of hyper awareness, both constantly monitoring ourselves and observing those around us for reaction. Most of us have incredible peripheral vision. Maybe unlike real butterflies.

The closest word to samanalaya in English I can think of, fairy, can’t fully capture the belittling levity the word has in Sinhala. The thing is, it is a harmless word. Even when deliberately used in offence, it’s for amusement rather than outright hatred. Because if you really want to cause hurt, there’s a wealth of other words in Sinhala which all sound worse. It’s a lyrical language; in the same way it thickens emotion, it can intensify spite.

Something that may be difficult to understand, however, is that it is never about the one word, or its use just one time. Samanalaya is a signifier and trigger, in all senses of the word. It heightens the hyper-awareness, sets off the rituals, and lets us know exactly who we are and what our place is in the scheme of things. In that sense, a single word becomes a stand in for experience and feeling and reaction all rolled into one.

Such reactions are not limited to being queer, of course. The same internal negotiations are made against similar words by women, minorities and marginalised people of all kinds every day. But queerness is, or can be, a set of identities that are largely internal and not immediately visible (though not always), which means that there is always more to hide.

All of this sounds dramatic but I assure you it really isn’t. It’s so automatic that it doesn’t even register anymore. That is perhaps the most terrifying mercy.
–
When the President used the word samanalaya, it was not directed at me. And yet, it was. I went through the same cycle. Incomprehension, followed by a light chuckle. Reality only kicked in when he paused suggestively, and the approving rumble of the crowd followed, and the camera cut to his new, old friends roaring in laughter. And even though I was watching the speech alone, I could feel my body already initiating the ritual.

Afterwards, what I couldn’t help thinking about was not about President Sirisena or myself but about the fact that there were surely butterflies among that crowd, too. (Yes, even butterflies are complicated enough to be in a crowd like that). Perhaps they were engaging the ritual much more rigorously. What might it really have been like to stand there, the body engaging the motions without thought like an instinctual survival mechanism, against that thunder? A violent kind of safety.

There’s much that can be said about being queer in Sri Lanka. The shunning by our families; the struggles in employment and education; in accessing healthcare services and the law; the effect of criminalisation that runs effortlessly across every layer of society and then through our skin. But despite all these things, it is perhaps the words that end up mattering most in the moment. Because how quickly and ruthlessly they guide everyone’s behaviours. This isn’t about the President, but he only had to say the word that Monday afternoon for our realities to come into sharp, eyewatering focus.
–
A friend I had at school was from just outside Matara. He was a scholarship kid like me, but because he was from outstation he had to stay the school’s hostel. It was a double burden. I only realised how much so when, after a few meetings of the Broadcasting Club – one of those pointless extra-curricular clubs that only seem to exist in Colombo schools – I quizzed him about why he wasn’t speaking up as much. He replied shyly, a hand scratching the back of his neck, that he didn’t want to sound like a godaya. As we held laminated cards with snippets of school news bulletins in front of us to practice speaking properly, his was one of the silent voices. After a while, he stopped coming altogether.

I think I partly got him then, starting to become familiar myself with the intricacies of not giving yourself away. I understood him more fully over the succeeding years, when the vigorous hierarchy of Sri Lankan society asserted itself swiftly over our school. There were the kids who made it through easier than others: the ones who could speak English better, the ones from the Families, the ones who were familiar and comfortable with the dynamics of Colombo or who could learn fast enough. And then there were the kids who didn’t, among whose number would inevitably be the godayas.

We all know how to not be a godaya. How to speak, who to speak to, how to inflect and how to nod your head so your point gets across effortlessly, soundlessly. On paper, these motions may seem dizzying, arbitrary, but after a lifetime of following them, it comes automatically. A merciful terror, but how they’d be intimidating to an eleven year old boy from Kumbalgama.
–
In the reactions to the President’s cataclysmic actions since a month ago, a common refrain has been casting him as a clueless gamarala (farmer), a godaya who wouldn’t know better. Some have taken this further, the gam kabaragoya (water monitor lizard) who couldn’t help himself, or most caustically, the ‘Polonnaruwa Gorakaya’.

The thing about these slights is that they, too, are not really about the President. After all, he hasn’t been a gamarala for a good four decades. Instead, they’re a rebuke against the kind of people he represents. It’s a convenient shorthand for saying, deliberately or not, that some people just shouldn’t be involved in the Important Things: the business of government, running the economy, Democracy. They should just stick to what they know in their villages. After all, no one really tells the Prime Minister – nor for that matter the finance ministers holding up that fuel pricing formula for the benefit of the uneducated with comical glee – to go back to Colombo 7.

We don’t talk about class enough in Sri Lanka. Not just about how the circumstances and wealth we’re born into determine the rest of our lives, but about how the markers of class haunt our lives forever. Being branded a godaya is not just a slur. It’s a stamp of who you are and what you can amount to in a devastatingly permanent sense. Being reminded of that reality by those who’ll never really experience it – could anything be more casually cruel?

In the end, it’s the words that add weight. Because how quickly and efficiently they demarcate who can do what, all the way from the Broadcasting Club to Temple Trees. This isn’t about the President, but he only had to pick up the phone that Friday evening for all his kind to become branded once again.
–
We talk about democracy a lot these days. But maybe our claims of democracy shouldn’t move on simple markers of identity. Those words which assume things of people based on who they are or seem to be and then prescribe entire realities onto them shouldn’t play a role in mobilising for democracy. This is how politics has always worked here, certainly, but bringing up these crude distinctions of identity have always served one set of people more than others: it has been neither the samanalun or the godayas, but the ones laughing their heads off at the front. And yes, this all sounds vapidly nice in the abstract, and harder to put into practice, but not excluding entire swathes of people from your idea of democracy right from the start is perhaps not too much to ask.

We are, once again, wondering how to pick up the pieces of our broken, twisted country, when strangers seem stranger than before. Perhaps our words can be a start.

Editor’s Note: Read more content on the coup here.

Constitutions Need Constitutionalism

Jayadeva Uyangoda-December 1, 2018, 7:13 pm 

In the present constitutional-political crisis, which began in the evening of October 26, 19th Amendment to the 1978 Constitution has come under severe scrutiny. Underlying it is a war of interpretations between two opposing camps of jurists, lawyers, political activists and of course informed citizens.

Meanwhile, Sri Lanka’s current political debate is so sharply polarized that a middle ground has not yet emerged in this war of constitutional interpretations.

The source of tension that arises from the 19th Amendment is its double hybridity. Firstly, it mixes some features of a presidential, or semi-presidential, system with many features of a parliamentary system. Secondly, it brings together minimalist republicanism and substantial parliamentarism. This constitutional double hybridity and its consequences would be a fascinating theme for a book on the 19th Amendment.

Most of the constitutions in the world today are hybrid in nature. The British and Indian constitutions are key examples. The British constitution is no longer a unitary one. It carries within it features of asymmetrical devolution. The Scottish parliament is almost like a legislative assembly in a federal state. The Indian Constitution has multiple hybridities. It combines a minimalist presidentialism with maximalist parliamentarism. It is neither a unitary, nor a federal constitution. It has weak unitary features and strong federal features. It is also a Republic with strong republican features. Yet, its president does not have a popular mandate. An electoral college elects the president. The Prime Minister is the center of real power, as in a Westminster parliamentary government.

Thus, India is a republic without a popularly elected president, almost like a nominal head of state. However, no one says that the Indian constitution with its multiple hybridities is a source of political conflict, instability and constitutional chaos. Even in times of conflict, there is a basic consensus the transgression of which politicians, jurists and judges generally abhor. That basic constitutional consensus, which is the bedrock of India’s modern republican democracy and which survives amidst many threats, has given risen to two influential doctrines, or dharma. They are (a) democratic constitutionalism, and (b) constitutional morality.

The idea of democratic constitutionalism basically lays down a normative framework to prevent capricious exercise of power by institutions as well as individuals who are entrusted with the task of managing the state and its governance functions. Taking the protection of the rights and freedoms of citizens while ensuring a well-ordered polity as the basic normative goal of constitutional government, constitutionalism sets out the limits of political power through such doctrines and practices as the rule of law, democratic accountability, checks and balances, and public good.

The concept of ‘constitution morality’ refers to ethical ideals that are derived from the core values enshrined in the constitution and also supplementary to them.These ethical foundations are unwritten norms of behavior that prevent arbitrary, capricious, and oppressive exercise of constitutionally mandated powers and authority. They provide normative yardsticks to evaluate words and deeds of those who wield executive, legislative and judicial authority. They derive their sustenance from traditions of jurisprudence, political thought and philosophy, and religio-philosophical heritage of the people, as much as the principles of law and constitution.

Modern India is an example of how a synthesis democratic constitutionalism and constitutional morality has produced a vibrant and substantive paradigm of constitutional hermeneutics. The latter’s roots can be traced to the Constituent Assembly proceedings. Founding fathers of India’s modern Republic laid down the political, jurisprudential, and ethical principles in accordance with which the constitutional provisions were imagined, formulated, and given substantive meanings. Seven decades after the founding of their constitution, even today, Indian judges, jurists and political theorists invoke the principles of constitutionalism and constitutional morality whenever an issue of constitutional application and interpretation becomes contentious. As India’s outgoing as well as incoming Chief Justices emphasized last week, when the democratic bearings of a society is at risk, it is the constitutional morality thatshould guide actions of the rulers, citizens, and judges alike.

Norms of constitutionalism and constitutional morality are most useful in making sense of hybrid constitutions that defy easy interpretation at times of political conflict and crisis. One reason is that a constitution becomes hybrid as a result of so many political compromises that it is called upon to embody. Charles Beard’s famous denunciation of the American constitution as a bundle of compromises is a very apt description of every hybrid constitution in the modern world. Hybrid constitutions, in the absence of substantive cultures of constitutionalism and constitutional morality, can develop the capacity to give rise to competing, and even hostile, approaches to interpretation. The reasons rest on the political bases of the conflicts it tends to generate and the options they call for their resolution.

Among Sri Lanka’s present challenges is the task of making political and legal sense of a constitution with double hybridity. Making sense of it requires a tradition of constitutional hermeneutics that can appreciate, not monism but plurality in both form and content of a constitution. Actually, in its chequered history of evolution, the 1978 constitution has had a life swinging from extreme monism to moderate pluralism. The original 1978 constitution and its 18th Amendment were thoroughly monistic in essence, producing a unicentric and highly centralized state structure as well as a personalized rule. In contrast, the 13th, 17th and 19th Amendment re-positioned the constitution within a framework of multiple pluralisms in which dispersal of power replaced concentration of power.

Sri Lanka’s present crisis also tells us that interpretative conflicts over a constitution are always meta-legal, or political, in their origin and character. They are political, because the conflict has arisen from the essentially political nature of the application of provisions that embody the double hybridity. President Sirisena’s decisions to remove one Prime Minister from office, appoint a new PM, and subsequent decision to dissolve parliament are political applications of constitutional provisions. They therefore carry an inherent risk of prompting competing interpretations in situations of power struggle.

What is a power struggle? A power struggle is a contestation among competing claimants for state power

How would an independent body such as the judiciary interpret the 19th Amendment adhering to the liberal principle of impartiality of justice, when what is at stake are competing claims to state power? What is the foundation on which the edifice of liberal impartiality can be constructed for judicial mediation in a power struggle for state power? To find answers to these two questions, we have to wait till the Supreme Court makes it determination on the fundamental rights cases over the dissolution of parliament. The judiciary’s task is no ordinary one. It is called upon to mediate in a conflict between the two main organs of the state, the executive and the legislature.

Precisely because of this particular dimension of the on-going contestation for state power that the judiciary will need to think beyond narrow constructions of constitutional law and invoke principles of democratic constitutionalism. However, in the raging controversy on the interpretation of the clauses of 19th Amendment, there is no reference whatsoever made to any Sri Lankan source of political and legal thought articulated in the fairly long tradition of making and unmaking of constitutions. The simple reason is that we do not have a body of constitutional thought on which we can fall back in times of crisis and uncertainty. We have no B. R. Ambedkars, Javaharlal Nehrus, or Sarvapalli Radhakrishnans to summon to our assistance when we are confronted with normative puzzles thrown out by our constitution or its users, misusers, abusers, and sundry interpreters.

In post-Emergency India, constitutional problems are not resolved by employing narrow technical approaches to interpretation. Judges, lawyers and scholars constantly look for guidance from a body of very rich constitutionalist thought articulated by the Founding Fathers in the Constituent Assembly. They also derive inspiration and guidance from legal and political philosophies of republican and democratic traditions.

What should have been the sources of a modern constitutionalist thought for Sri Lanka? Given the nature of the country’s constitutional evolution, liberal and republican political and legal philosophies should have been the sources to provide a normative framework for Sri Lanka’s constitution makers as well as interpreters. However, one searches in vain in proceedings of constituent assemblies, parliamentary select committees and also parliamentary debates on constitutions any significant clues to liberal or republican normative thought that would have guided the political ideals of those who took part in the constitution making or reform processes.

We have a republic without our awareness of the fact that it has actually no republican spirit of freedom from domination and sovereignty of citizenship. We have a system of parliamentary governance, without an understanding that it is anchored on liberal democratic constitutionalism at the core of which is the principle that there are limits to the exercise of political power. We have a thoroughly hybrid constitution the normative foundations and justifications of which, or their absence, are hardly spoken of. Thus, Sri Lanka has produced constitutions without constitutionalism.

In the present crisis, Sri Lanka’s judiciary is called upon to adjudicate a major political conflict that is locked in competing interpretations of some key constitutional provisions. This indeed offers a rare opportunity for the Court also take first steps towards articulating the basic tenets of a doctrine of constitutionalism and constitutional morality for our country.

Thus, citizens will be justified in trusting that their Lordships will be mindful of this onerous task as well.

Sirisena Takes A Step Back: Contemplates Withdrawal Of Gazette Dissolving Parliament, But Still ‘No’ To Ranil

DECEMBER 1, 2018

Fearing an unfavorable ruling by the Supreme Court on the gazette dissolving Parliament, President Maithripala Sirisena has informed UNP party leaders last night that he was willing to withdraw the gazette dissolving Parliament.

Sirisena

Sources close to Sirisena said he was likely to withdraw the gazette on Monday, before the Supreme Court begins the hearing of the petitions against the dissolution of Parliament. Chief Justice Nalin Perera has appointed a seven bench judge to hear the case which will be taken up next week.

“At the meeting last night, the President also said he would not dissolve or prologue Parliament, “Tamil Progressive Alliance leader Mano Ganesan, who represented the UNF at the meeting, said.

UNP Chairman Kabir Hashim, Lakshman Kiriella, General Secretary Akila Viraj Kariyawasam, Patali Champika Ranawaka, Rajitha Senaratne, Mano Ganesan, Rishad Bathiudeen and Rauff Hakeem attended the meeting representing the United National Front. Ousted Prime Minister Ranil Wickremesinghe did not attend the meeting.

Ganesan, commenting on the discussion with the President last night, also added that Sirisena “informally” admitted that his chosen Prime Minister Mahinda Rajapaksa did not have a majority in Parliament. “He also admitted that the UNF commanded the support of a majority in Parliament.”

In another key development, Sirisena had been critical of the behavior of UPFA and SLPP MPs in Parliament, saying he had “nothing to do” with them.

Speaking to a group of journalists after the meeting, UNP General Secretary Akila Viraj Kariyawasam said the meeting was positive.

He added that both parties discuss their concerns and attempted to arrive at a solution. All Ceylon Makkal Congress (ACMC) leader Rishad Bathiudeen also confirmed that the meeting ended without a final decision, but added that they would meet Sirisena again over the weekend.

Sirisena, however, has reiterated that he will not reappoint UNP Leader Ranil Wickremesinghe as Prime Minister. He said he was willing to appoint any other MP of the UNP in the position. “The discussion virtually came to a halt when the President made that remark,” Ganesan explained.

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Ranil is UNP’s nominee for PM – Kabir

Lakmal Sooriyagoda-Saturday, December 1, 2018

The Court of Appeal yesterday commenced hearing into the writ petition filed by United National Party leader Ranil Wickremesinghe and 121 other Parliamentarians.

They sought an order in the nature of Quo Warranto declaring that Mahinda Rajapaksa is not entitled to hold the office of Prime Minister and the matter was fixed for further support on Monday (December 3).

When the petition came up before Court of Appeal President, Justice Preethi Padman Surasena and Justice Arjuna Obeysekara, the Defence Counsel appearing on behalf of Prime Minister Mahinda Rajapaksa and other respondent parties raised preliminary objections against the writ petition. They moved Court of Appeal that the petition be dismissed in limine.

President’s Counsel Gamini Marapana with Counsel Navin Marapana appearing on behalf of Prime Minister Mahinda Rajapaksa informed that Court of Appeal has no jurisdiction to hear this case until the Supreme Court makes a determination regarding several Fundamental Rights petitions regarding the dissolution of Parliament.

He further submitted to Court, Parliamentary proceedings including the No Confidence Motion were commenced at the time several FR petitions are being heard before the Supreme Court. “What will happen if the Supreme Court determined the President’s decision to dissolve Parliament was valid. If it happened, all Parliament proceedings up to now would be null and void,’President’s Counsel Marapana observed.

In reply, President’s Counsel K. Kanag-iswaran and Counsel Suren Fernando appearing for UNP leader Ranil Wickremesinghe stated that the petition before this court is nothing to do with dissolution of Parliament. They contended that the Court of Appeal has jurisdiction to issue an order in the nature of Quo Warranto in terms of Article 140 of the Constitution.

“The Supreme Court will look into the matter relating to the dissolution of Parliament. The resolution for the No Confidence Motion was passed in a duly summoned Parliament,” President’s Counsel Kanag-iswaran added.

President’s Counsel Romesh de Silva appearing for Minister Udaya Gammanpila informed Court that the Court of Appeal does not have the jurisdiction to hear this matter since it relates with the Parliamentary affairs. He further argued that this application cannot be maintained since the President and the Speaker have not been made as parties.

‘The Speaker never said motion for the No Confidence Motion was carried. What transpired in Parliament can be examined through the video footage officially released by Parliament website. A Quo Warranto cannot be issued based on the uncorrected version of Parliament proceedings (Hansard reports).

Silva further stated that the court has to consider the consequences of an Interim Order prior to grant it as requested by petitioners. If court issues an Interim Order, country would be in anarchy. There will be no Prime Minister or Cabinet of Ministers to govern the country,’ Silva added.

Meanwhile, Gamini Marapana PC further submitted to court that there is no ex-facia No Confidence Motion duly passed in Parliament since it was passed using voice vote while standing orders being suspended. President’s Counsel Sanjeewa Jayawardena and Manohara de Silva PC were also made their oral submissions against the writ petition.

In this petition, the petitioners further sought an order in the nature of Quo Warranto declaring that 49 respondents including the Prime Minister and the Ministers of the incumbent government are not entitled to hold the office of ministers of the Cabinet of Ministers and Deputy Ministers.

The petitioners, the Members of Parliamentarians representing the United National Party, Tamil National Alliance, Janatha Vimukthi Peramuna, Sri Lanka Muslim Congress and several other parties filed this petition naming 49 persons including Prime Minister Mahinda Rajapaksa, members of cabinet Ministers and Deputy Ministers as respondents.

The petitioners stated that on November 14, 2018, Parliament passed a vote of no-confidence against the purported government of the Respondents. They further stated that on November 16, Parliament passed another Vote of No-Confidence against the Government. They maintained that in terms of Article 48 of the Constitution, the Cabinet stood dissolved from November 14, 2018.

The Removal of the Prime Minister and the Dissolution of Parliament: A Legal Opinion

Photo courtesy Maatram

This legal opinion was prepared by Gehan Gunatilleke, Dinesha Samararatne, Kalana Senaratne and Asanga Welikala in response to a request made by Dr Jayampathy Wickramaratne, P.C, Member of Parliament.

G GUNATILLEKE D SAMARARATNE K SENARATNE AND A WELIKALA

on 12/01/2018

Since 26th October 2018, Sri Lanka has been in an unprecedented political, economic, and constitutional crisis. The crisis was triggered by a series of decisions taken by President Maithripala Sirisena, each of which, in our view, is in violation of the Sri Lankan Constitution. This opinion aims to offer responses to several constitutional questions that have arisen with regard to the developments since 26th October. These questions relate to the consequences of a party withdrawing from a National Government, the appointment and removal of a Prime Minister, discrepancies between the Sinhala and English versions of the Constitution, and the dissolution of Parliament.

1. Did the withdrawal of the United People’s Freedom Alliance (UPFA) from the National Government result in the vacation of the post of Prime Minister?

There is no constitutional provision that stipulates that the withdrawal of one party in a coalition forming a National Government has the effect of dissolving the Government or the Cabinet of Ministers, or the office of Prime Minister becoming vacant. Article 46 (4) and (5) of the Constitution, which deals with a National Government, makes no reference whatsoever to such consequences.
The only legal consequence of the formation of a National Government is that the ordinary cap on the number of Cabinet Ministers at 30 and non-Cabinet Ministers at 40 is suspended, with Parliament determining the number of Ministers, which may be higher than the ordinary limit. Conversely, if a National Government ceases to exist, then the only legal consequence is that the number of Cabinet Ministers must be reduced to 30 and the number of non-Cabinet Ministers to 40. The President can do this only on the advice of the Prime Minister, as all ministerial appointments and dismissals legally require the President to act on the advice of the Prime Minister (see articles 45(1) and 46 (3)).

2. Is the President empowered by the Constitution to appoint any Member of Parliament as Prime Minister, who, in his opinion, is most likely to command the confidence of Parliament?

The Constitution does not authorise the President to unilaterally dismiss the Prime Minister, based on a subjective opinion of the President, as to which Member of Parliament commands the confidence of Parliament. Other than for death, resignation, or on ceasing to be a Member of Parliament, the Prime Minister vacates office only when Parliament has signified its loss of confidence in the Government as a whole, according to the circumstances and procedures specifically established by the Constitution.

Article 42(4) provides that the President shall appoint the person ‘who, in the President’s opinion, is most likely to command the confidence of Parliament’. The literal meaning of this text has to be given meaning in light of the purpose for which this power has been vested in the President. The power of the President of the Republic is a constitutional power to be exercised in the public interest and in light of relevant facts. It is not something that is personal to him that can be used in any way that he pleases.

The first task of interpreting a democratic constitution is to promote the values of democracy, constitutionalism, good governance, and the public interest. It is not to facilitate executive convenience and unilateralism, or to enable secret plots to subvert the Constitution and change governments precipitately to serve partisan political interests. Consequently, the reference in article 42(4) to the opinion of the President is not a reference to a private and subjective opinion, but an opinion that can be formed only by reference to the will of Parliament.

Moreover, article 42(4) deals with the appointment of a Prime Minister only where the office of Prime Minister is vacant. But the situation that arose on 26th October 2018 was totally different, as there was a Prime Minister in office enjoying the confidence of Parliament. The Constitution does not contain any explicit provisions that empower the President to dismiss the Prime Minister.

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 Statement of Government Policy, the Appropriations Bill, or a vote of no-confidence (see articles 46(2) and 48). Since the Constitution specifies these ways in which the Prime Minister ceases to hold office, and has removed the previous power of the President to remove the Prime Minister at will, it follows that there are no other ways through which the office of Prime Minister can become vacant. In particular, the President can only appoint another Prime Minister where the serving Prime Minister has lost office in any one of these ways.

It should be added that as a consequence of the presidential two-term limit being reintroduced by the Nineteenth Amendment, the President should not appoint a Member of Parliament to the post of Prime Minister who is constitutionally disqualified from assuming the presidency in a situation where that office becomes vacant before the expiry of the incumbent’s term of office.

One of the critical – but much ignored – aspects of the purported appointment of Mahinda Rajapaksa MP as the Prime Minister is the fact that he is disqualified from holding the office of President, since no person who has been elected twice to the office of President is qualified to be elected to such office (see article 31(2) and article 92(c)). Where the office of President becomes vacant, Parliament elects as President one of its Members who is qualified to be elected to the office of President for the unexpired period of the term (article 40(1)(a)). This clearly disqualifies any person who has been twice elected from assuming the office of President in this particular situation.

We highlight this issue, simply to make it clear that the decision to appoint a new Prime Minister on the 26th of October failed to consider the broader legal and political factors that deserved the serious attention of the President.

3. Does the discrepancy between the English and Sinhala text of the Constitution, mean that the Sinhala version grants the President the power to remove a sitting Prime Minister and reappoint another unilaterally?

It is true that there is a discrepancy between the Sinhala and English versions of article 48(1). The relevant portions of article 48(1) in English states: ‘On the Prime Minister ceasing to hold office by death, resignation or otherwise…the Cabinet of Ministers shall…stand dissolved and the President shall appoint a Prime Minister…’ (italics added). The ‘or otherwise’ here is a clear reference to what follows in article 48(2), which sets out the ways in which the Cabinet stands dissolved – and the Prime Minister ceases to function in office – by the loss of confidence of Parliament.

The import of the Sinhala version is the same, except that instead of saying ‘by death, resignation or otherwise’ it states ‘by the removal from office or resignation or otherwise’ (dhoorayen ivath karanu labeemen ho illaa as veemen ho anyaakaarayakin). But the defenders of President Sirisena’s actions claim that the words ‘by the removal from office’ in the Sinhala text conclusively prove that the President continues to hold the power to dismiss the Prime Minister even after the Nineteenth Amendment.

This discrepancy is regrettable, and is evidently the result of an oversight during the legislative process by which the Nineteenth Amendment was enacted in April 2015. However, this discrepancy makes no material difference to the process through which a Prime Minister may be removed from office. Neither the Sinhala nor English versions of article 48(1) refer to the President’s power to remove a Prime Minister. Thus, treating this apparent discrepancy as a reference to such a power of removal is incongruent in terms of the Constitution read as a whole.

Nowhere else in the Sinhala text is it contemplated that a presidential power of dismissal has been retained in the Constitution after the Nineteenth Amendment; everywhere else, and especially in article 46, which is the most relevant provision to this question, the text in both Sinhala and English is entirely consistent to the effect that this power has been removed from the President and conferred solely on Parliament. In any case, it is not only possible but also the more reasonable, logical, and harmonious approach to interpret ‘removal from office’ in the Sinhala text as referring to removal from office as set down in article 48(2), rather than the incongruous and implausible argument that its effect is to retain a presidential power that Parliament clearly intended to abolish when it enacted the Nineteenth Amendment.

Any fair-minded and informed observer would more readily accept the explanation that the discrepancy was the result of an oversight, which, while regrettable, is not fatal to the integrity of the Nineteenth Amendment framework.

4. Did the President have the power to dissolve Parliament?

The President has no power to dissolve Parliament in the first four and a half years of its five-year term. Article 70(1) clearly provides that the President’s power to dissolve Parliament does not come alive ‘until the expiration of a period of not less than four years and six months from the date appointed for its first meeting’, except if Parliament requests the President to dissolve Parliament by a resolution passed by a two-thirds majority of its Members, including those not present. It has been argued that article 70(1) has to be read subject to the general and empowering clause found in article 33(2)(c). Article 33 describes several powers that are vested with the President including the power to ‘summon, prorogue and dissolve Parliament.’ However, this general power has to be reconciled with article 70(1), which restricts the power of the President to dissolve Parliament. Any other interpretation would subvert the meaning and purpose of article 70(1), which is clear.

The Parliament that was elected in August 2015 had its first sitting on the 1st of September 2015.

Accordingly, the President’s power to dissolve Parliament will come alive only in March 2020.

5. Did the Supreme Court have the authority to stay the operation of the Gazette Extraordinary (No 2096/70) of 9th November 2018 that purported to dissolve Parliament?

The Supreme Court has the jurisdiction to determine the legality and the procedural propriety of the exercise of the President’s power to dissolve Parliament according to the Constitution. Prior to the enactment of the Nineteenth Amendment, the President enjoyed immunity from any kind of legal proceedings before a Court of Law. Article 35(1) of the Constitution, as amended by the Nineteenth Amendment, permits ‘any person’ to file a petition under article 126 against the Attorney-General ‘in respect of anything done or omitted to be done by the President, in his official capacity.’ Article 126 provides that a petition alleging the violation or imminent violation of a fundamental right can be filed before the Supreme Court within one month. If the Court grants leave to proceed, it will make a determination on the petition. In doing so the Court has the power to grant ‘relief’ or ‘make such directions’ that it would consider to be ‘just and equitable’.

In current proceedings, several petitioners have alleged that their right to equality, recognised by article 12(1), was violated by the President when he issued a Gazette notification purporting to dissolve Parliament. The Supreme Court has consistently interpreted the right to equality to include the right to be free from the arbitrary use of executive or administrative power. The petitioners requested the Court to grant interim relief in the form of suspending the Gazette notification until the conclusion of the case. Having heard all parties, the Court decided on the 13th of November to grant interim relief, and suspended the operation of the Gazette purporting to dissolve Parliament.

Editors Note: Read more content on the coup here.

This is a sloppy but de facto dictatorship

The proto-fascist rouge-regime is floundering trying to consolidate itself

The icy grip of the rogue-state (www.dreamstime.com/stock-photo-black-hand-death-walking-dead-zombie-theme)

Kumar David-December 1, 2018, 7:07 pm 

Much ink has flowed discussing recent events and much moral judgement offered; another such piece is redundant. My focus today is on the next stage. By way of preface I first put down a few facts on paper. Love him or hate him, Ranil was removed from office unconstitutionally; Mahinda’s appointment is illegal; parliament was prorogued in bad faith and dissolved unconstitutionally; twice it was disrupted aggressively; pro-Rajapaksa MPs walk out as they cannot secure a majority; Sirisena declares he will not reinstate Ranil or appoint SF as PM, whatever parliament determines thus trashing the constitution and implicitly admitting that Mahinda lacks a majority. Manifestly Sri Lanka needs a new constitution drafted to be idiot-proof and with the executive presidency abolished.

Sirisena and Rajapaksa are manipulating state and government illegally, unconstitutionally, unethically and immorally. In private their MPs don’t deny it, saying: "We don’t care, we want power; we won’t give up power". Isn’t this what dictatorship means? True they haven’t consolidated power yet, they have more bridges to cross, and it is still possible to stop the proto-fascists and defeat the rogue-state. I use the prefix ‘proto’ to mean emergent or early-stage, and rogue in rogue-regime well let the facts speak for themselves. The proto-fascists are a mob of MPs and inner circle storm troopers. The rogue-state is an alliance of a desperate President with a self-styled Prime Minister and a mock Cabinet. Together they have grabbed control of state and government

My focus in on four concerns: Reaction to the Courts’ impending rulings, election prospects, impeachment and finally what may happen if the threat of evicting Rajapaksa and his rogue-Cabinet becomes imminent. I hold different views and have a different assessment of prospects from my liberal friends. Yes sure, we are on the same side of the political divide, sure we abhor scoundrels, but we assess trends differently. We both opposed Pinochet, Trump’s despoliation, the alt-right in Europe and so on, but they, the liberals, were hopeless at foreseeing what was coming and woke up after the flood. Marxists think they are endowed with better foresight (sic!) and draw strength from Trotsky’s warnings on inter-war European fascism. Disaster would strike, he warned, unless Stalinists, socialists and moderates changed course; which of course they did not, except for an unwashed cigar chomping whisky guzzling bowler hatted old fogey in London.

Let’s go step by step. It is likely there will be parliamentary elections within months; both Ranil and Mahinda know that. The tussle now is who will head the caretaker government in the election period. Sirisena will remain head of state and abuse every privilege of office, but if the rogue-regime retains control of both government and state, the proto-fascists will enter the electoral arena at considerable advantage. This is pivotal as this promises to be the most corrupt, rigged and vicious election in Lanka’s history. The Prime Minister’s Office has already been turned into a SLPP election agency by Namal. The fracas now is about whether Ranil or Mahinda will head the interim caretaker government; it’s only about that, it’s not about governing.

If the rogue-regime remains in office during the elections, I will not retain faith in the impartiality of the Elections Commission two of whose members (not Professor Ratnajeevan Hoole) have been shown-up as men of straw. I think the police force and senior officers wish to remain impartial, but if showered with improper orders from higher up, what to do? I do not want to be IGP now for a million dollars. If I defy illegal orders I’ll be fired – will Ranil feed my wife and children? Execute monstrous instructions and you will spit on me! The point is that the elections will be skewed in favour of the proto-fascists if the rogue-regime retains control of both caretaker government and executive presidency.

And what about the Courts? They were despoiled at the time of Sarath Silva; I don’t know if they have recovered. Despite the sterling qualities of Sripavan and Dep, and the so-far-so-good current CJ, a threat comes from a different direction. Let us assume that the judgements are flawless but what is there to stop the proto-fascists from flouting them? We have seen how they treated Parliament and Speaker; who can expect such people to treat the Supreme and Appeal Courts with respect? My liberal friends place great store by the impending judgements and the next election where they expect a fed-up population to vote out the scoundrels. Sorry buddy, it’s not so simple; even if the Courts rule in your favour and even if you poll more votes, it’s not so easy. Most in Lanka know more about Micky Mouse than the methods used by Mussolini and his Black-Shirts to grab power. Those ignorant of history are fated to repeat its mistakes.

The conflict is complex and deep; ladies crafting lofty petitions and gentlemen at learned seminars are important, but impotent unless they take their campaign to the people; towns and villages, grassroots and trade unions. Now that’s another problem. Go out against Mahinda into the trade unions and you could get beaten up; a majority of the working class is with the racists. Sad but true. These are not the days of NM, Colvin, Pieter and Dr Wicks; this is the day of the jackal. Mahinda, like Trump, has rallied a mass base; lower lifeforms in SLPP, SLFP and Dead-Left defecate in public.

Lanka is saturated with racism. The civil-war aggravated it but the roots of identity politics go deeper – I have to devote a column to this sometime. The point is, though recent events have exposed the proto-fascists as a monstrous antithesis of democracy will the Sinhalese masses turn away from the pent-up emotions of race politics? To put it simply, who will win the elections; victorious-in-war-against-Tamils racists howling "The country is being sold to the Tamils again", or effete liberals peddling a manifestly failed economic programme? The answer my friend is blowing in the wind.

Parliament, Speaker and Court-verdicts will be manipulated. Proto-fascism will not and cannot retreat; a Rubicon has been crossed, there is no going back. Is the penalty for treason in Sri Lanka death? Wilful and repeated violation of the constitution surely is treason. One must not evoke alarm but this has gone beyond all limits. Such things have never happened before.

In parliament, JVP leader Anura Dissanayake threatened Sirisena with impeachment on two counts: "Deliberate violation of the constitution, or mental infirmity". Note that it can’t be both; if you are insane you cannot knowingly violate the constitution. He also took aim at the UNP for failure in governance, failure to bring perpetrators of gross corruption to book and lack of transparency about "deals". Impeachment is very unlikely; Mahinda was stabbed in the back and Ranil knifed in the front. But one needs to be ambidextrous to stab both at the same time and persuade the UNP and SLPP to join hands and secure the needed 2/3rds. This is unlikely, but you can’t put ambidexterity beyond the capabilities a "mentally infirm" person.

My final bit of crystal-ball gazing pertains to "What if the proto-fascists cum rogue-state are cornered into imminent defeat?" If the Courts hold that dissolution is ok and that the no-confidence motions can be ignored, that’s another story; I will have to write more columns. What is important is to explore the opposite: What if the Courts rule that it was wrong to dissolve parliament, and that the kick in the butt (two kicks) meted out to Mahinda are binding? My liberal buddies expect Mahinda to bow out, the proto-fascists to withdraw and lick their wounds and Sirisena to weep in solitude over the shambolic of his ill-fated adventure. I am not so sure.

My Cassandra tormentor says the same. "They will find a way to subvert the Courts and fight tooth and nail to retain a grip on power". If the rogue-state goes that far it will be a full-fledged naked dictatorship, and to contain public outrage it will need to use force. Poor sods, soldiers and brass! What will they do? Cringe before criminal orders and subdue the people, or say NO to the "mentally infirm"? The latter course, the rogue-state will call mutiny. I have my prophecy where this will all end; but let’s leave it at that for now.

Thank You Mr. President!

By Ameer Ali –NOVEMBER 30, 2018

Dr. Ameer Ali

With a single stroke of a pen Maithripala Sirisena has gone down in history as the President of a Democratic Socialist Republic for creating a dysfunctional government and a dislocated economy, both at the same time. A president who was a former village headman, and may be with some knowledge about how a village economy works, has been empowered by a Gaullist constitution with unlimited powers to manage the operation of a seventy year matured democracy with a complex but open market economy. Within a few weeks, this president has made the first dysfunctional and the second dislocated. Absolute power corrupts absolutely.

The parliament of the country is in limbo; there are two prime ministers and two cabinets; parliamentarians are either switching sides for money and positions or engaging in thuggery when they assemble; local currency is sliding rapidly in value; tourism has stagnated; and foreign investment has almost halted. In short, the nation is in political and economic chaos, while its ordinary citizens are left to their own fate and orphaned. All this in a country steeped in religious beliefs, rich in cultural traditions and blessed with unparalleled natural beauty and fertility.

What is ailing this proud nation now is a disaster brought simply by the personal hatred between two individuals, an elected Prime Minister, Ranil Wickremesinghe and an impulsive President, Maithripala Sirisena. Before they fell out both were collaborators in a series of financial and legal scandals and both ignored warnings from an economy running into unbridgeable budgetary gaps and current account deficits. Both equally ignored the mounting cost of living that was burying families under oppressive debts and encouraging suicides. None of them realised that the economic difficulties facing the nation were systemic and no patchwork measures are going to bring it back into black. The current crisis has worsened an already bleak situation.

In between these two adversaries is the former ruling family, Rajapaksas, and its cronies attempting to stage a comeback with support from a vengeful President through the back-door. Their avalanche of crimes and corruption committed when they were in power were about to be exploded through the nation’s judiciary, and the best and only way to avoid such a calamity for the clan is to capture power by any means. The President, with little knowledge about constitutional proprieties and with faulty advice, has invited the Rajapaksa clan with open arms to manage the realm. What an incredible achievement from the Gamarala from Polonnaruwa. Thank you Mr. President for making Sri Lanka a laughing stock.

Read More

Dialogue deadlock

• President likely to withdraw controversial Gazette 
• Discussions with TNA and UNF inconclusive; UNF to meet Pres. on Sunday again 
• Parliament to take another vote on NCM
• TNA to discuss political prisoners on separate meeting with Pres. on 3 Dec.
• Cordial meeting between RW and MR in Parliament

By Chathuri Dissanayake-Saturday, 1 December 2018 

President Maithripala Sirisena is now considering rescinding the order to dissolve Parliament, showing signs of loosening the deadlock between the Executive and Legislature while talks with political parties opposing his decision to appoint new a Prime Minister ended inconclusive.

Two meetings Sirisena had with Tamil National Alliance (TNA) and United National Front (UNF) leaders ended with no clear decision. There are plans in place to hold yet another discussion between UNF and the Executive on Sunday. As the discussions with political parties bring no immediate relief to the country’s political impasse, the Gazette notification dissolving Parliament is likely to be withdrawn next week, the Daily FT learned.

“There are a few options that the President has before him; one is to rescind the Gazette dissolving Parliament, and the other is to wait till the court case is over on 7 December,” the source who functions as a Cabinet Minister of the Government appointed by Sirisena said.

Sirisena’s decision to fire sitting Prime Minister Ranil Wickremesinghe and appoint one-time rival former President Mahinda Rajapaksa was met with stiff resistance from the UNF, led by the United National Party (UNP), and Opposition parties JVP and Tamil National Alliance. Even a month after the move, the country has not been able to move past the political crisis. For the first time in weeks, ousted Prime Minister Wickremesinghe and his successor Rajapaksa had a cordial meeting in the Parliament library.

President Sirisena’s decision to reverse the order to dissolve Parliament however depends on the withdrawal of the court cases challenging his decision, a Sri Lanka Freedom Party (SLFP) member close to Sirisena told Daily FT.

“The Gazette will be rescinded provided that the cases before court challenging the Gazette are withdrawn, and he can then appoint a new Prime Minister and Cabinet.”

Another SLFP member close to the Executive said that the move was discussed as a way of gaining support for the new Prime Minister appointee Rajapaksa.

“When the Parliament may be dissolved soon, it is difficult to get MPs to cross over. So, this was to send a message to the Rajapaksa camp to say they can get the 133,” he told Daily FT.

However, the uncertainty over the outcome of the Supreme Court decision on his proclamation dissolving Parliament may also have been considered as the concerns were raised during the meeting with the TNA as well.

During the discussions held with the TNA, Sirisena had been more responsive to accepting a no confidence motion if taken by name without suspending the Standing Orders, a TNA member who was present at the meeting told Daily FT.

“He told us to bring a fresh no confidence motion against Mahinda Rajapaksa when we meet again on Wednesday and take a fresh vote by name through the electronic system,” the member said.

However, the TNA told the President that the no confidence motion passed on 16 November can be voted again as it has now been entered into the order book giving five days of notice.

During the meeting which lasted close to one and half hours, TNA leader R. Sampanthan reminded Sirisena that he was voted to the office he holds with the support of the members of the UNP and minority parties. The members also noted that the mandate given to the current Parliament was to appoint Ranil Wickremesinghe as the Prime Minister.

“We explained to him that it should be the party who should decide on who should be appointed as the Prime Minister, and he has to accept it,” TNA source said.

The meeting also discussed issues of the Tamil community, with TNA raising the issue of political prisoners. The President has invited the members of the TNA to take part in a discussion set to take place with all stakeholders, including the Attorney General, on the matter on 3 December, a TNA source said.

The President has also promised to hold a separate discussion on other issues faced by the Tamil community. 

SRI LANKA’S CIVIL RESISTANCE AWAKENS, LIKE THE PHOENIX FROM THE ASHES – KISHALI PINTO JAYAWARADENA

01/12/2018

Despite the undeniable shock caused to Sri Lanka’s democratic system on October 26th 2018 as a result of President Maithripala Sirisena’s swearing in of a new Prime Minister lacking a majority in the House, several unmistakable positive factors have emerged since then.

Those ‘legal experts’ who led the President up the garden path in persuading him to discard constitutional prudence should hang their deviously plotting heads in shame. Assuming they feel shame in which case, (as that colourful colloquialism sharply puts it), pigs may fly. Of course, it is very much an open secret as to who these reprobates are, including those who played fast and loose with the country’s judicial system for years. But the President is yet to name them or for that matter, yet to explain himself to the people as to why he did not seek the advice of the Attorney General or an opinion from the Supreme Court prior to bringing the nation to the brink of the edge.

Showing great endurance

True, the damage is considerable. This political tomfoolery has tarnished the country’s reputation, lost preciously needed financial resources at year end when that is needed the most, imperiled the nation’s long praised manner in which peaceful transfer of power took place through the exercise of the franchise and cast a pall of uncertainty over what is in store for us with the dawning of 2019.

Yet institutional strength and civil rebellion has risen like the proverbial phoenix from the ashes, some from most unlikely quarters at that. Institutions and individuals who could have crumbled under the pressure, quite unexpectedly, did not. Judges carried out their constitutional and statutory duties from the Supreme Court to the Magistrate’s Court with great endurance even as unprecedented pressure was brought to bear on them. This is far different to the day when one ex-Chief Justice was so brazen as to apologise for decisions handed down absolving politicians of grand corruption and another Chief Justice was more in the residence of the executive than in court.

Painfully accustomed to the edifice of an independent judiciary crumbling, bit by agonising bit, citizens have responded to the judicial fortitude now being illustrated with a measure of quiet relief. Reprimanded in some quarters for going to court along with others in seeking clarity on the gazette issued by the President dissolving Parliament, member of the Elections Commission Prof Ratnajeevan Hoole replied with force that he had not taken sides in the dispute between two political parties but that he would always take the side of the law.

Duty of the Elections Commission

In fact, those critics who question this perfectly proper seeking of judicial relief on his part would do well to remember the judicial caution administered by the Supreme Court to an Elections Commissioner that the Constitution assures him independence ‘so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections – even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders’ (Karunathilaka v Dayananda Dissanayake, 1999).

In that case, the Court found that Emergency Regulations issued on the basis of ‘national security’ having the effect of cancelling the date of the poll for Provincial Councils fixed by the Elections Commissioner at the time were not authorised by law or a valid exercise of power as there was no known threat to national security, public order, etc. The acquiescence of the Elections Commissioner in this action by the executive found little favour with the Court, Justice MDH Fernando going so far as to say that ‘the material available to this Court indicates that he made no effort to ascertain the legal position, or to have recourse to legal remedies.‘

That said, politicians engaging in several hasty utterances on the ongoing case before the Supreme Court and media reporting the same must also be far more cautious. In a case eerily similar to this, in which a provincial correspondent of the ‘Divaina’ had reported an opposition parliamentarian (when the presidential election petition was being heard), saying that ‘the petition had already been proved and if the petitioner did not win her case, it would be the end of justice” was found to have committed contempt. The argument that there was no intention to prejudice the outcome of the case and that the speech in question was solely political was not accepted (Re Garumunige Tilakaratne, 1991).

Eclectic range of resistance

Meanwhile, Speaker Karu Jayasuriya and the police of the Sri Lanka Parliament bore with exemplar dignity, all the vulgar abuse and objects hurled at their heads by chillie-water throwing pro-Rajapaksa parliamentarians who disgraced the House. Amusingly, after weeks of President Sirisena’s Sri Lanka Freedom Party (SLFP) and former President Mahinda Rajapaksa’s Pohottuwa party (SLPP) maligning the Speaker through slavishly adoring electronic media channels, the Speaker was cajoled by the SLFP to meet the President and thereafter (presidentially) ‘appreciated’ for those efforts.
Institutional strength was manifested elsewhere as well. Undeterred by political threats, officers of the Criminal Investigation Department proceeded stoically with investigations into killings and disappearances during the Rajapaksa decade resulting in the netting of a high- worth Chief of Defence Staff (CDS). Thus the range of resistance was eclectic. Quiet relief is occasioned. These are incremental steps to rejuvenation of the democratic process that must be rightly noted.

Notably moreover, separating themselves from the messiness of one political crook calling out another political crook, Sri Lankan citizens told the political establishment off in no no uncertain terms. It is a safe bet that none, least of all those who precipitated this chaos, would have bargained for this robust reaction. As Sri Lankan women marched through heavy, lashing rains before the Presidential Secretariat this week demanding that the President reconsider his actions, it was a powerfully visual symbol of anger in the face of political chicanery. As young artistes refused to accept awards from two ‘Ministers’ when they came to the stage at a national event with the national clad ‘worthies’ at a loss as to how to react and only able to grin foolishly in the face of this palpable insult, this was civil resistance in its most evocative form.

The link between the Constitution and democracy

In the final analysis and to put the matter simply, the link between the Constitution and democracy are the citizens. No politician can be expected not to ‘tinker’ with the constitutional text. Some do it with flair and aplomb as what happened in 1972 (yes, even by the so-called great socialist brains of the day who pulverised the Public Service Commission and the Judicial Service Commission) and in 1978 when the task of ‘constitutionally engineering’ a monolithic Executive Presidency was accomplished.

Others do it far more clumsily and with an appalling lack of foresight as what happened in 2015. But ultimately the protector of the Constitution is the people. And during the last month, we saw the hesitant beginnings of that process.

That by itself, should not be taken lightly.

-Sunday Times.