By Laksiri Fernando Courtesy The Island

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.