Judiciary played a crucial role in halting President Sirisena’s march to  Constitutional Dictatorship like his Predecessors.

Judiciary played a crucial role in halting President Sirisena’s march to  Constitutional Dictatorship like his Predecessors.

Veluppillai Thangavelu

The high tech drama began on the night of October 26, at 8.30  pm.   President Sirisena to everyone surprise appointed his arch-foe Mahinda Rajapaksa, MP as Prime Minister. On the following day, he fired off a letter to Prime Minister Wickremesinghe informing him that he has removed from his office of Prime Minister in virtue of powers vested in him in terms of Article 44 (2) of the constitution. President Sirisena did not know that Article 44(2) does not apply to a sitting Prime Minister. It applies to the appointment of a Prime Minister after the elections. However, President Sirisena claimed that he had been advised by “legal experts” that he does have powers under 44 (2) to dismiss a sitting Prime Minister.

In between the appointment of Mahinda Rajapaksa on the 26th October and dismissal of  Ranil Wickremesinghe on 27th October, there were two Prime Ministers! Not long after the country had no Prime Minister, Ministers or government until Ranil Wickremesinghe took his oaths following the judgment of a seven-member bench of the Supreme Court on December 13th.

Following the parliamentary elections held on August 17, 2015, the incumbent United National Party (UNP) led United National Front for Good Governance (UNFGG) won 106 seats, an increase of 46 since the 2010 election, but failed to secure a majority in Parliament. The main opposition United People’s Freedom Alliance (UPFA) won 95 seats, a decline of 49 seats. The Tamil National Alliance (TNA), the largest party representing Sri Lankan Tamils, won 16 seats, an increase of two compared to 2010. The remaining eight seats were won by Janatha Vimukthi Peramuna (6), Sri Lanka Muslim Congress (1) and Eelam People’s Democratic Party (1).

Prime Minister Ranil Wickremesinghe, leader of the UNFGG and UNP, was able to form a national government with the support of UPFA MPs loyal to President Maithripala Sirisena.

One of the landmark pieces of legislation enacted by the national government was the 19th Amendment (19A) to the Constitution on 28 April 2015. It was passed by the 225-member Sri Lankan Parliament with 215 voting in favour, one against, one abstained and seven absent. The Amendment envisaged the stripping of many powers of the Executive Presidency, which had been in force since 1978.  It is the most radical reform ever applied to the 1978 Constitution of Sri Lanka enacted by JR Jayawardhane in 1978. He became the first Executive President of Sri Lanka in 1978.

Differences between President Sirisena and Prime Minister began to surface after the formation of the national government. The long-simmering uneasy relationship between the President and Prime Minister over government policies became more acrimonious beginning from 2018. The President accused the Prime Minister of not investigating an alleged plot by Nalaka de Silva, the former DIG of the Terrorist Investigation Division (TID) to assassinate several VIPs, including him,  Though the DIG  Nalakka de Silva  he was cleared initially of any wrongdoing was subsequently  arrested by the CID on Thursday, October 26, one day before Rajapaksa was sworn in as Prime Minister.

The arrest was made during his interrogation by the CID which had questioned him on five separate days over the alleged plot.

A man named Namal Kumara in mid-September disclosed the alleged plot implicating  Nalaka de Silva. Kumara has claimed that Silva had discussed the plot with him over phone targeting Sirisena and Rajapaksa.

After the swearing in of Rajapaksa by President Sirisena, the country plunged into a stormy and turbulent constitutional crises day and night. Here is the timeline.

October 27 – President Sirisena prorogues Parliament until November 16. He issued a formal notice for Prime Minister Ranil Wickremesinghe to step down. Same day Prime Minister Wickremesinghe addresses the Nation refusing to step down. He said only Parliament can remove him.

October 29 – President Sirisena address the nation. He claimed “I noted that there were also differences of culture between Mr Wickremesinghe and me. I believe that all those differences in policy, culture, personality and conduct aggravated this political and economic crisis. 

October 30 – Speaker Karu Jayasuriya made a ‘kind request’ to President Maithripala Sirisena to reconvene Parliament to “prevent the country from falling into a crisis”  following requests made by the UNP, ITAK, JVP. SLMC MPs to safeguard the privileges and rights of the MPs and establish a majority in Parliament.

November 02 –  119 MPs from several parties met and passed a resolution calling for an immediate convention of Parliament claiming that the removal of the Prime Minister and the appointment of another was unconstitutional.

November 08 –  President Sirisena met with  Tamil National Alliance (TNA) delegation.  He told the TNA parliamentary group that he would not reappoint UNP leader Ranil Wickremesinghe as the Prime Minister even if his party secured a majority in Parliament. He asked the TNA to abstain at voting time.  The TNA told Sirisena it had taken a decision to vote against the appointment of Mahinda Rajapaksa as the Prime Minister.

November 09 – President Sirisena dissolved Parliament amid a political crisis following his attempt to replace Sri Lanka’s prime minister. The dissolution took effect from midnight on Friday. A general election was fixed for January 05, 2019.

November 12 –  Twelve Fundamental Right petitions were submitted to the Supreme Court of Sri Lanka challenging the president’s decree sacking parliament and calling a snap election, by the UNP, TNA, JVP, SLMC and others demanding the restoration of status quo prevailing prior to 26 October. These were taken up for hearing on the same day by a three-member bench of the Supreme Court. Responding to the petitions, Attorney General Jayantha Jayasuriya made submissions stating that “the court had no jurisdiction to hear and determine the Fundamental Rights petitions against the dissolution of Parliament”. On the same day, 5 petitions by Prof G. L. Peiris, Minister Udaya Gammanpila, Minister Vasudeva Nanayakkara and two others supporting the dissolution of parliament were filed at the Supreme Court. However, in the evening the three Judge bench issued an interim order till  7th  December staying the proclamation issued by President Sirisena to dissolve parliament and granted leave to proceed with the Fundamental Rights petitions that challenged the President’s dissolving parliament.

November 13 – The Supreme Court gives a stay order preventing Prime Minister Rajapaksa and his Ministers from holding office heightening the island’s political drama and drawing an immediate vow to appeal the decision by Mahinda Rajapaksa. Same day the Speaker office said that Parliament would convene on 14 November as per the gazette issued by President Sirisena.

November 14 – No confidence motion passed by parliament against Mahinda Rajapaksa.

November 16 – Second no-confidence motion supported by 122  MPs passed by parliament against Mahinda Rajapaksa.

December 13 – Supreme Court declares dissolution of Parliament unconstitutional.  The Court ruled that President Sirisena’s decision to dissolve the Parliament 20 months before the end of its term was unconstitutional. A full (seven-judge) bench unanimously ruled on that the President cannot dissolve Parliament until it completes a four-and-a-half year term. The court also said the President’s decision to call snap elections was illegal.

December 14 –  Mahinda Rajapaksa said he would relinquish his claim to be Prime Minister and would back down after an address to the nation on Saturday

December 14 –  Supreme Court refused to issue an interim order vacating the earlier interim order of the Court of Appeal restricting the functions of the Prime Minister’s office, the matter was set down for hearing in mid-January 2019. Following this decision,  Prime Minister Rajapaksa indicated his intention to resign.

December 15 – Ranil Wickremesinghe re-appointed as Prime Minister for the 5th time thus ending the constitutional deadlock that lasted for 51 days.

The constitutional deadlock centred around two Articles in the constitution, Viz, Article 23, le 33(2)(c)  and  the stand alone Article (70.1)  that prohibits the President from dissolving the parliament before 4 years and 6 months or on a 2/3 majority vote in the  Parliament at any time. The  submissions made by MA Sumanthiran, PC  and Kanag-Iswaran, PC  who appeared for the first  Petitioner R.Sampanthan before the Supreme Court unscrambled the legal issues. M.A. Sumanthiran was at his best. To the surprise of everyone, he explained the legal texts that few seemed aware of. He began citing Artice23 (1) of the Constitution. The following are excerpts from Sumanthiran’s submissions –

23.(1)All laws and subordinate legislation shall be enacted or made and published in Sinhala and Tamil, together with a translation thereof in English.

Provided that Parliament shall, at the stage of enactment of any law determine which text shall prevail in the event of any inconsistency between texts: Provided further that in respect of all other written laws and the text in which such written laws were enacted or adopted or made, shall prevail in the event of any inconsistency between such texts.

English is not mentioned because all legislation is drafted in English. It is the language that matters. No matter that the Tamil and Sinhalese versions are in conflict, it is the English that reflects the true intentions of the drafters because it is the language in which it is drafted. That is why the proviso in 23(1) says,

“Provided further that in respect of all other written laws and the text in which such written laws were enacted or adopted or made, shall prevail in the event of any inconsistency between such texts.”

Sumanthiran emphasized that the word text rather than language had been used. Drafters and judges work with English. That is why no one had noticed that the Sinhalese version of Article 70 had an extra sentence. (Later Justice mark Fernando’s son, Suren who was the youngest to speak followed by Hejaaz Hizbullah). The justices were mum, neither denying nor accepting that they worked with English texts.

Sumanthiran used the Interpretation Section of the Constitution, Section 170, to show the definition of laws:

“existing law” and “existing written law” mean any law and written law, respectively, in force immediately before the commencement of the Constitution which under the Constitution continue in force;

1) Article 33(2)(c)

33. (2) In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power – (c) to summon, prorogue and dissolve Parliament;

2) Article 62(2)

62. (2) Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament.

3) Article 70, particularly sub-article 1

70.(1) The President may by Proclamation, summon, prorogue and dissolve Parliament:

The word harmonious interpretation of all sections, everyone agreed was essential. However, agreement stopped there. The Petitioners insisted that their interpretation was wholesome and harmonious. Article 33(2)(c) said the President had the power to dissolve Parliament. Article 62(2) said the normal period of a Parliament is 5 years but it may be dissolved sooner. Article 70  said any dissolution by the President can be only after the first 4.5 years or after a resolution by 2/3 of members. Article 70 in its subsequent sub-sections states what the President has to do in case he decided to dissolve Parliament – such fixing a date for elections etc. There is no inconsistency. This interpretation is harmonious.

The Respondents on the other hand, see these as standalone sections. Article 33(2)(c) lets the president dissolve Parliament any time. Article 62 in saying “Unless Parliament is sooner dissolved” means it may be dissolved any time before 5 years are up. Article 70 is stand alone, telling the President what he as to do when dissolving. They did not explain why they use a part of 70, while ignoring Section 70 (1) setting the 4.5-year minimum period. (https://www.colombotelegraph.com/index.php/fourth-and-final-day-of-argument-at-the-supreme-court/)

Though Wickremesinghe has regained his title the warrying between President Siriseba is far from over,  The latter has vowed to assert his authority and shape the government on his terms. In additional to the 3 portfolios vested in him including Minisry of Defence, he has grabbed the Ministry of Law and Order, inclduing Police under his wrap,

Though Sirisena said he is a one term President and he will retire from politics after that, he found his job very enticing. The power that came with his office too was tempting to be give up. But the fact the UNP/UNF  announced Wickremesinghe as their next presidential candidate dashed the hopes of Sirisena to run again. Hence.  his decision to join forces with Rajapaksa hoping that the latter will support him, Today he finds himself having burnt the candle on booth ends.

In a way, the political marriage between Sirisena and Wickremasinghe was a mis-match. It is like giving a Sinhala only girl from the rustic Polonaruwa to an  English educated elite wealthy groom from Colombo 7. It is, therefore, small wonder the marriage ended in divorce.  And politically, the conflict  between the two remains unresolved.

Who is the villain in this  drama? Villain is defined “a cruelly malicious person who is involved in or devoted to wickedness or crime; scoundrel; or a character in a play, novel, or the like, who constitutes an important evil agency in the plot”. It is certainly  Pressident Sirisena.  Addressing a SLFP electoral organizers meeting, President Sirisena proclaimed that he would not allow a federal state for the Tamils or merger of the North and East provinces. Reportedly, he had stated that “he would have to be killed” before this happens.  Earler he said that the Sinahalese abhor the word ‘federal’ and the Tamils the word  ‘unitary’ so we have to draw a constitution that will be acceptable to  both Sinhalse and Tamils.  Therefore, the Tamils who voted for him felt betrayed. He came to power on the promise guaranteeing reconciliation, democracy and good governance. His actions dismissing the Prime Minister Wickremesinghe and installing Rajapaksa, dissolving parlaiment all on the advice his “legal experts” damaged his image beyond repair.

The role of TNA who kept the balance of power between the two also  deserves praise. Their principled stand to uphold the constitution and the law of the  law of the country earned them praise by the progressive sections of the Sinhalese people and the foreign diplomatic community. Politics should be based on  moral principles, and not idealities.

Now, who is the hero? It is certainly the Judiciary consisting of both the Supreme Court and the Appeal Court. Both institutions whose image was badly dented in the past  by the likes of Sarath N Silva and Mohan Peiris have regained their past glory.

The Judiciary has played a crucial role in halting President Sirisena’s march to constitutional dictaroship like his predecessors.