By Rohana R. Wasala

In a democracy, constitutions can be drafted, revised or replaced by the people as they wish, but when such a sovereign nation is disintegrated through a constitution (or by some other means), it can hardly be reintegrated into unity. Sri Lanka is today being threatened by one of the worst existential crises it has ever encountered since independence in 1948. According to one predominant point of view, there appears to be a constitutional conspiracy backed by geopolitics-driven foreign forces to undermine its unitary status. Many legal and constitutional experts, some of them politicians, convincingly argue that the 20^th amendment (20A) is designed to clear the way for the implementation of a fully fledged federal constitution unsuitable for Sri Lanka camouflaged under a self-contradictory akeeya/orumittha label, against the will of the overwhelming majority of the politically savvy Sri Lankan citizens. The 19^th amendment (19A) seems to be a live constitutional landmine.

Mr Sarath Kalugamage, convener of a civil interest group named ‘Ratata Hetak’, alleges that the 19^th amendment has effectively robbed the people of their sovereignty through the inclusion of an article in terms of which the president cannot dissolve parliament before the lapse of four and a half years, because such a stipulation makes it impossible for a malfunctioning, corrupt legislature like the one under the Yahapalanaya to be brought to an end, enabling the people to elect a new parliament as per their inalienable right. It has been queried by responsible citizens how a piece of legislation (i.e., that which obstructs the executive president’s power to dissolve parliament during the first four and a half years of its term if the need arises) which should have been passed by a 2/3rds majority in parliament and in addition  should have been approved by the people at a general referendum, got into the statute book. Already there is a call for the annulment of 19A by a future government. It is now patently clear that, constitutional or unconstitutional, only the election of a new parliament will save the Sri Lankan nation and its democracy from anarchy.

Mr Maithripala Sirisena is still the executive president  of the Democratic Socialist Republic of Sri Lanka, where constitutionally, sovereignty resides in the people. He was elected in January 2015 by the people of the country (though this was not under ideal conditions owing to brazen foreign involvement) to exercise that sovereignty on their behalf. The president can’t relinquish his official prerogatives, much less his official responsibilities, under any circumstances. He dissolved parliament and appointed a new prime minister on October 26, 2018 in accordance with powers vested in him by the Constitution, though now the sudden dismissal of the dysfunctional yahapalana government is being challenged by the sacked prime minister and his allies. The news about Mr Mahinda Rajapaksa having formed a government at the invitation of the president generated a wave of public euphoria across the country: firecrackers were set off in celebration not only in the south but also in the north.

Having said that, personally, I remain somewhat skeptical (though less than before) about the sincerity of Mr Sirisena’s latest volte-face in his relations with his erstwhile leader and close associate Mr Rajapaksa. It is my sincere hope, nevertheless, that the turn of events will finally be in the best interest of the country. No Sri Lankan would have been more delighted than me by a proper rapprochement between the two of them. I was among the earliest who urged such a Mahinda Maithri burying of the hatchet for the greater good of the country (Ref. Urgent: A Maithri Mahinda reconciliation”/The Island/June 17, 2015); but I never hoped for this kind of ‘reconciliation’ that seems to have been forced by Mr Sirisena’s own currently vulnerable circumstances! To recall the past, what Mr Sirisena did by his controversial election eve statement in August 2015 that he won’t make Mr Rajapaksa prime minister even if he won a majority of seats (which was a certainty according to opinion polls at the time) put paid to the kind of  hope for genuine reconciliation that I, with so many other ordinary citizens, entertained : because his words so severely demoralized the pro-Mahinda voters that a substantial number of them didn’t cast their vote in their frustration. A third time Mr Sirisena let Mr Rajapaksa down was when, more recently, he prevented Mr Wickremasinghe from being defeated by a no confidence motion that he (Mr Sirisena) himself was instrumental in bringing against him. The suspicion rankles in my mind (as it could in others’) whether Mr Sirisena is again leading Mr Rajapaksa (with his three times proven naivety) up the garden path, for his usual way is not to spill the beans before time. However, the cogency of the reasons he adduces for his action (e.g., suspected UNP complicity in an alleged plot to assassinate him, crucial policy differences between Mr Wickremasinghe’s UNP and Mr Sirisena’s SLFP rump, personality clashes, obvious popular disapproval of their uneasy alliance, the role that Mr Wickremasinghe has played in the Central Bank robbery, etc) seems to be a guarantee against backtracking at this stage.

On the other hand, however, the current circumstances suggest that this time Mr Rajapaksa cannot be thought to be acting out of  his inherent naivety with regard to character-reading his associates (an accompaniment of his generous nature). Four years of Yahapalanaya has wrecked the country’s economy and has completely stalled the robust countrywide development programmes that had started during the previous Rajapaksa government that was toppled at the beginning of 2015. Starting during the period of Yahapalanaya (2015-18) the Sri Lankan rupee has fallen from 131 to the US dollar at the end of 2014 to nearly 180 at present; the poorest of the poor were persecuted by increased taxation; many valuable national assets were sold or earmarked for sale; local industrialists were heavily taxed while foreign investors were given tax concessions; the agrarian sector was deliberately discouraged or neglected; the country’s independence was pointlessly surrendered to paid bureaucrats serving the interests of the so-called international community which are clearly inimical to the wellbeing of our Motherland. A recrudescence of common crimes has been in evidence, so has mega scale corruption in the highest places in government. Signs of a resurgence of separatism began emerging in the north and east.

In this background, the camouflaged 20A drafted by antinational separatist sympathizers is proving to be a noose flung around the neck of unitary Sri Lanka. Its intended passage (presumably the same way that unconstitutional articles were smuggled into19A at the committee stage) would have been tantamount to the release of the trapdoor under the prisoner’s feet. This danger – the strongest reason behind the president’s decision and Mr Rajapaksa’s acquiescence) – will not disappear until fresh parliamentary elections are held and a new government formed that answers to the aspirations of all Sri Lankans, not those of foreign powers who are only following their own selfish national interests.

So, the dissolution of parliament is the need of the hour. But this is not an easy prospect. For one thing, a significant number of the incumbent members of parliament (I am calling them ‘incumbent’ because the presidential dissolution of parliament has been judicially suspended until December 5) are not likely to favour this idea for two reasons, not necessarily equally applicable to all of them. There are two groups of these individuals: those who want the parliament elected in August 2015 to continue until the end of its original term for the express purpose of taking an irreversible step towards the separatist goal that terrorism could not reach militarily, by further tinkering with the 1978 Constitution in the form of 20A; and they have NGO, foreign and some local support; the other group comprises those who are worried about their attractive pension rights which they must forfeit when parliament is dissolved before five years are completed. Besides, as the president who headed the Yahapalanaya himself admitted recently, under it some MPs willingly became  purchasable at astronomically high prices. What better argument than this for supporting the idea of dissolving parliament at this juncture? What democracy is there in allowing a handful of rogues like that to determine the future of today’s young and the unborn generations of our beloved Motherland?

The decisive presidential move must have been made by Mr Sirisena after consultation with his legal aides. But it has not been smooth sailing due to it being challenged by the ousted party. Ugly scenes in the house involving enraged legislators engaged in unseemly behavior – triggered obviously by  an inexplicably authoritarian Speaker assuming ultra vires executive powers instead of playing his legitimate role as the principal functionary and the highest authority in parliament, whose bounden duty is to remain politically neutral and independent of party loyalties at all times. Though the UNP, still dominated by the  former premier Mr Ranil Wickremasinghe, and its allied parties the TNA represented by Mr M.A. Sumanthiran and the JVP led by Mr Anura Kumara Dissanayake, pretend that the uproar in the house in the past few days was caused by the members of the government (earlier the Joint Opposition) conducting themselves in an unfairly disruptive manner, the truth is that Speaker Mr Karu Jayasuriya is to blame for it all.  The government MPs are only asking him to follow the proper procedure to allow them to show whether they have a majority or not, or to bring a no confidence motion against the new PM based on established procedures and traditions without violating standing orders unnecessarily. Apart from this, why does he reportedly consult foreign ambassadors about what to do and invite them to watch from the gallery the riotous proceedings on the floor which result from his own refusal to carry out his duties in an impartial manner?

The unruly conduct of the MPs earned much bad press for Sri Lanka, which was exactly what the foreign nosey-parkers were eager to bruit around the world, but which the ordinary Sri Lankan masses watched in genuine consternation and with serious concern. However, they well understood that the Joint Opposition members of parliament behaved in an agitated manner because all their peaceful overtures and abject pleadings in Sinhala (foreign ambassadors cannot be expected to understand this) failed to persuade the Speaker to table the UNP-led Opposition’s No Confidence Motion (NCM) against the new prime minister (Mr Mahinda Rajapaksa) adhering to established parliamentary norms, and pass it if possible. People also watched on TV screens how the Opposition MPs conducted themselves in even more despicable ways without any reason to at least partially justify such behaviour, two of them seen with objects that looked like knives; in fact a government MP was rushed to hospital with a bleeding hand after a scuffle. Before those riotous parliamentary meetings, which were entirely due to his vehement opposition to the executive president’s action, Speaker Mr Karu Jayasuriya had officially recognized the appointment of Mr Rajapkasa as prime minister and even made seating arrangements in the parliament chamber. Biased media, particularly the Western press, were silent about the real culprits who caused the recent incidents of violence in the house and allowed them to escalate: it was the handiwork of the Speaker and the Opposition members who stood by him as he let himself flout the proper parliamentary procedure, behaving like a pull-string puppet controlled by an invisible puppeteer. Can Sri Lankans look on passively when democracy is being thus outsourced?

The present clash is a headlong confrontation, which is completely uncalled for, between the legislative (parliament) and the executive (president) branches. According to the current republican constitution (operative since 1978 subject to various subsequent amendments), any dispute between these two branches of government should be referred to the judicial branch (represented by the supreme court).  Now, the supporters of the UNP and some minority parties who enjoy more influence than their electoral numbers justify have moved court calling into question the president’s dissolution of parliament and replacement of the Yahapalanaya administration on October 26, 2018. Had they done this immediately after the president’s actions, the unpleasant incidents that occurred recently would have been prevented; but better late than never. The judges deliberated it for three days; it was indicated that the petitioners and respondents will  be heard on December 4,5 and 6. It is also reported that an opposition member has filed a petition with the court of appeal pleading that  a writ of quo warranto be issued on Mr Mahinda Rajapaksa regarding his appointment as prime minister. On November 26, the Supreme Court appointed a seven member bench to hear the fundamental rights petitions filed against the dissolution of parliament. So, let justice take its course. Everything depends on the verdict that will be delivered on December 7 or probably a day or two later.

The people of the country have endured untold hardships over the past (nearly) four years of Yahapalanaya. This was the opposite of what they brought the UNP-led coalition to power for; they had been persuaded to believe that they were going to get a better country than under the war-winning SLFP-led UPFA. Postwar normalization of society has been deliberately thwarted; so has economic development. If the innocent Sri Lankans  suffered for so long without breaking the peace, without causing unnecessary mayhem, why can’t the  MPs supportive of the previous Yahapalanaya government cooperate with the president at least temporarily, and hold on with some patience for just a few days for the sake of the country? They may argue that the people are with them. But the majority are not with them. What has the ousted government done to be so cocky about public support? That is what the vast disgruntled majority of peaceful Sri Lankans are asking.  To their surprise, Mr Sirisena revealed, after appointing Mr Mahinda Rajapaksa as prime minister, that he was his third choice for the post following irreconcilable differences of opinion between him and ousted prime minister Mr Ranil Wickremasinghe. Mr Sirisena wanted to appoint another UNP member (than RW), namely Mr Karu Jayasuriya, Mr Sajith Premadasa, (or even Mr Ranjith Madduma Bandara as rumoured) as prime minister. All of them declined for reasons that any person with average intelligence can guess. Only Mr Mahinda Rajapaksa had the selfness to accept the invidious challenge for the sake of the country. There is no reason to believe that Mr Rajapaksa wanted to be PM by devious means. He always wants to be elected by the people, but not to be appointed by an appointing authority, to office.

Mr Sirisena’s assertion of the sovereignty of the people over the current parliament is legitimate, in my layman’s view, because the present parliament does not adequately represent the public will. The majority of ordinary citizens by now have no confidence in the parliament that was elected in 2015. At the February 2018 local government election, the Joint Opposition (with some 54 or 55 MPS as against the 22 or so of the official opposition) secured over 70% of the seats, leaving the rest to be divided between the estranged Yahapalanaya partners including the UNP and the SLFP, which contested against each other.  What better rational justification could be found for the president to believe that the present parliament does not at all represent the current public opinion about the ousted Yahapalanaya? Besides, recently, the Yahapalanaya coalition government came to an official end with the withdrawal of the UPFA. The people know why there is so much opposition against new parliamentary elections being proposed. Whenever elections are held most of them will never return to parliament. The JVP will vanish from the political scene for the treacherous role they are playing at the moment. The people were fed up with the previous foreign backed coalition regime. The earlier they are given a chance to vote in a new parliament, the better it will be for the survival of the Sri Lankan nation and its democracy.