Failure to Abolish the Executive Presidency is the Worst Blunder both Sirisena and Wickremesinghe Committed

Not Abolishing the Executive Presidency Cause of the Recent Political Crisis 

Veluppillai Thangavelu

On October 26, 2018, at 8.30 pm President Maithripala Sirisena in a hush-hush swearing-in ceremony appointed Mahinda Rajapaksa, his former adversary as the new Prime Minister replacing Ranil Wickremesinghe.    The dramatic move came when UPFA abruptly pulled out of the ruling coalition National Unity government.  It was President Sirisena, who defeated Rajapaksa in the presidential elections held on 08, January 2015. After winning the presidential race Sirisena promised to investigate corruption and human rights abuses committed by Rajapaksa.

On the next day, after 3 hours, President Sirisena dashed off a letter to Wickremesinghe informing him that the latter has been sacked from office. He claimed he acted in terms of Article 42(4) of the constitution and “I must make it very clear that the new appointment [of Mahinda Rajapaksa] was made on expert legal advice in strict accordance with the Constitution.” There was a huge gap in policy agreement between the two of us,” Sirisena said. “I believe the cultural and policy differences between us contributed to this political and economic crisis.” (https://scroll.in/latest/900011/sri-lanka-crisis-arrogance-and-corruption-led-to-wickremesinghes-sacking-says-president-sirisena)  As we shall see later that Article 42(4) applies only to the first-time prime minister and not to a sitting prime minister

As expected, Wickremesinghe described his sacking as unconstitutional, illegal and undemocratic. He said in accordance with Article 43 of the constitution he is still the Prime Minister. He can be removed only by parliament where he enjoys the confidence of the majority of members.

On the other hand, President Sirisena stood his ground. He told the media the reason for the sacking as ‘DOOSANAYA’ corruption and that he would not appoint him again as Prime Minister even if the 225 MPs in parliament approved. But he had studiously refrained from explaining to the people the nature of these corruptions. As a result, President Sirisena was subjected to vilification and ridicule.   To save space let me give the events that unfolded in chronological order.

On October 27, President Sirisena by a gazette notification announced that he had prorogued the parliament acting under Article 43   till 16 December 2018. Same day Prime Minister Wickremesinghe addressed the Nation refusing to step down, only parliament can remove him he claimed. It was obvious that the prorogation is a ruse to give time to Rajapaksa to engage in horse trading. In a parliament with 225 members, the UPLA held only 96 seats as compared to United National Front (UNF) 103 seats. Only a handful of MPs crossed over to UPFA/SLFP.

October, 29 – President Sirisena appointed the first members of a new cabinet at the Presidential Secretariat in Colombo with four UNP MPs appointed as ministers including Wijeyadasa Rajapakshe, Vadivel Suresh, Vasantha Senanayake and Ananda Aluthgamage.  Some said they have been offered over Rs. 500 million ($2,796,150 USD, Dec 2018) to defect.

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 the immediate convening of Parliament claiming that the removal of the Prime Minister and the appointment of another were unconstitutional.

November 08 – President Sirisena met with a 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. Asks TNA to abstain from any vote of no confidence.  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 will take 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 dissolving 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 7 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 from Mahinda Rajapaksa. The same day the Speaker office said that Parliament would convene on 14 November as per the gazette issued by President Sirisena on 4 November.

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.

November 23 – A Quo Warranto petition was filed in the Court of Appeal by 122 Parliamentarians, challenging the appointment of purported Prime Minister Mahinda Rajapaksa and the new cabinet. The petitioners allege that the that the Prime Minister and ministers were sworn into office in an unlawful and illegitimate manner and they purport to exercise government power in direct violation of the Constitution. The petitioners urge Court to direct the 49 respondents cited in the petition to show under what authority they function in the office as purported Prime Minister, Cabinet ministers, deputy ministers and state ministers.

November 25 – President ready to appoint new PM if Parliament follows Standing Orders. As the country’s political turmoil entered the second month, President Sirisena declared that he would appoint a new Prime Minister “if Parliament follows Standing Orders and shows a majority.” “If Mahinda Rajapaksa has the majority in Parliament, he can continue with the government without any obstacle. If it is proved that Mr Rajapaksa does not have a majority, I believe he will take a decision,” he told the Sunday Times.

December 04 – Mahinda Rajapaksa filed an appeal in the Supreme Court challenging the Court of Appeal Interim Order restraining him as Prime Minister until the final determination is reached with regard to the Quo Warranto writ petition filed by 122 Parliamentarians, including Ranil Wickremesinghe. Through this appeal petition, Rajapaksa sought an order to set aside the Interim Order dated December 3 by the Court of Appeal. He also sought an order to grant special leave to appeal against the Court of Appeal order in the writ application No.363/2018.

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 constitutional turmoil that lasted for 51 days.

Thus it will be seen President Sirisena continue to commit one blunder after another to cover up earlier blunders. Yet he claimed he was acting “on the advice of eminent President’s Counsels.”

Since the start of the political crisis on October 26, civil society organisations have been at the forefront of protests against the decisions of President Maithripala Sirisena. Civic groups, professional associations and rights groups have held protests, rallies and conferences to voice their concerns about democracy and the rule of law.

President Sirisena thought, albeit irrationally, that as the Executive President, he can do whatever that pleases him. However, he or his advisors made the fatal mistake of not reading 19A which reduced the powers of the executive president. The Amendment was passed in parliament on 28 April 2015 and certified into law by the Speaker on 15 May 2015.

The above Amendment was a result of a promise made by President Sirisena at January 8, 2015, Presidential Election which he won by 6, 217 162 votes (51.28%) as against Mahinda Rajapaksa who polled 5,768, 090 votes (47.58%) from the UPFA. It is ironical that now the present leader of the UPFA /SLFP is the sitting President himself.

The 19 A resulted in a more democratic form of governance as compared to the draconian 18A passed within ten days which abolished the two-term limit for a President.

President Sirisena and Prime Minister offered significant bribes over Rs. 500 million ($2,796,150 USD, Dec 2018) and ministerial portfolios to those MPs to defect. A UNP legislator claimed he had been approached by Sirisena’s party to defect with an offer of Rs.500 million and an apartment in Malaysia along with free passage for the entire family to a foreign destination.

After failing to rope enough parliamentarians to cross over the President Sirisena used his last trump card in his hands to dissolve parliament on 09 November 2018 and calling for general elections on 5th January 2019.

In his proclamation dissolving the parliament he cited paragraph (5) of Article 70 of the Constitution to be read with paragraph (2) (c), of Article 33 of the Constitution and paragraph (2) of the Article 62 of the Constitution and in pursuance of the provisions of Section 10 of the Parliamentary Election Act, No. 01 of 1981 to (a) Dissolve Parliament with effect from midnight November 09. 2018.

Each and every move by President Sirisena only helped to deepen the country’s political and economic crisis.

President Sirisena conveniently omitted paragraph (1) of Article 70 of the Constitution when he had cited paragraph (5) of the same Article. Paragraph (1) of Article clearly states that the President cannot dissolve Parliament during the first four and a half years of its term unless there is a resolution passed by not less than two-thirds of the Members of Parliament, including those not present. Consequentially the presidential gazette was ruled as being in contravention of Article 70 (1) of the Constitution and a violation of the petitioners‘rights guaranteed under Article 12 (1) of the Constitution.  On a harmonious reading of the constitutional text, Article 70(1) was held to prevail over paragraph (2) (c), of Article 33.

On November 13,  twelve Fundamental Right petitions were submitted to the Supreme Court of Sri Lanka challenging the president’s decree dissolving 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 7 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.

The arguments by lawyers appearing for the petitioners and respondents were principally that Article 33(2) (c) gave the President the right to dissolve Parliament and Article 70 listed the conditions for such dissolution.

President Counsel Kanag – Iswaran appearing for Petitioner R.Sampanthan, MP in his submission said –

This description, curiously, lays emphasis only on the driver and forgets the vehicle, which is Article 70 (1). Without the vehicle, the driver cannot move. Whether legislative driven or executive driven, you need to have a Proclamation. The functionaries of the three wings, namely, the legislature, the executive and the judiciary, derive their authority and jurisdiction from the Constitution. The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various Articles and sometimes decipherable from the constitutional silence.

Its inherent dynamism makes it organic and therefore the concept of constitutional sovereignty is sacrosanct. It is extremely sacred as the authorities get their powers from the Constitution and nowhere else. It is the source that is the supremacy of the Constitution, he highlighted.

He reminded that passionate speeches had been made, mostly political; warning the Supreme Court of the impending dangers and the like if the dissolution is not upheld. It went as far as calling the challenge to the dissolution as terrorism, he said. He recalls the words of Dr Ambedkar: �I feel that the constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile. Both have to be read together otherwise emphasis will only be on the driver and forgets the vehicle, which is Article 70 (1).

President Council M.A. Sumanthiran who also appeared for petitioner R.Sampanthan in his submission said:

“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.

After hearing arguments by both sides the Supreme Court on 14 December ruled unanimously that Maithripala Sirisena’s order to dismiss parliament amid hold new elections issued on 9 November, was unconstitutional. The seven-judge bench said the president lacks the power to dissolve Parliament at will before four-and-a-half years from the day of its first sitting, citing the 19th constitutional amendment passed in 2015.

“This is a historic judgment delivered by the Supreme Court; for the first time, an act of the president has been challenged. That was possible because of the 19th amendment. Prior to that when the president was in office, he had full immunity,” said Sumanthiran an opposition lawmaker and lawyer who argued for the petitioners.

The Supreme Court historical judgement has ended a political catastrophe that has paralysed the nation.  The friction between the executive President, who is displaying fits of insanity and an adamant Prime Minister, persists undeterred.  Both are at each other’s throats on issues like allocation of ministries, boards and departments.

President Sirisena and Wickremesinghe came to power pledging to fight bribery, corruption, waste but those evils have only proliferated. And peace, justice and National reconciliation are still a distant dream.

The vexed national question that gave rise to nearly three decades of civil war remains unresolved. The draft constitution is limping its way to parliament, but the chances of securing a 2/3 majority look increasingly slim.

The Supreme Court historical judgement has ended a worsening political turmoil that has paralysed the nation for more than six weeks, yet the cold war between President Sirisena and Wickremesinghe is continuing. The political, economic and cultural differences between the two have not changed.

Prior to the enactment of 19A, the President was vested with unlimited powers short of turning a man into a woman or vice versa.  Article 54 which states: “The President shall appoint all public officers…as well as the Attorney-General and the Heads of the Army, the Navy, the Air Force and the Police Force” and Article 55 states “Subject to the provisions of the Constitution, the appointment, transfer, dismissal and disciplinary control of public officers is hereby vested in the Cabinet of Ministers and all public officers shall hold office at pleasure”. Article 107 states: “the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President.

19A clipped some of the powers the powers of the executive president but has not abolished in toto, contrary to the solemn pledge given by both President Sirisena and Prime Minister Wickremesinghe. As it is 19A is like jumping half the well!  The President enjoys enormous powers; he is the Head of the State, the Head of the Government and the Commander-in-Chief of Armed Forces. The President appoints the Prime Minister, appoints Ministers but is not required by the constitution to consult the Prime Minister; he may consult the latter only if he considers it necessary. The President can also remove any Minister at will, even when the Prime Minister is from a party different to that of the President. The President appoints personnel to most important positions in the military and the judiciary and various ministries. He presides over cabinet meetings and holds the portfolio of Defence Mahaweli Development and Environment by virtue of his office.  Right now he has appointed himself as Minister of Law and Order which is unconstitutional.

In November 2003 President Chandrika removed the Ministers of Defence, Foreign Affairs, and Media when Prime Minister Wickremasinghe was abroad. She took over the Ministry of Defence and appointed members of her party as Ministers of Foreign Affairs and Media. In February 2004, she dissolved Parliament and dismissed 39 non-cabinet ministers and deputy ministers while Wickremasinghe commanded the support of a majority of members in Parliament.

When JR Jayewardene introduced the all-powerful Gaullist semi-presidential system in 1978, Dr NM Perera asked the question what would happen “if the presidency goes to a madman”?  It looks though he had a premonition of President Sirisena who came to power 40 years later! In a democracy, the parliament represents the people and the government irrespective of the political system is accountable to the parliament. Sadly, Sri Lanka has never addressed the need for a constitution that will last at least a century.

UNF seems too have not learnt any lesson from the past. It has forwarded 37 names to the President to be appointed Ministers instead of 28 names. It is also arguing that the President and Prime Minister should not be counted as Ministers making the cabinet. The same argument by President who claimed he had powers to sack the Prime Minister and dissolve parliament as he pleased.

What next? President Sirisena who said he will be a one time president is now talking about the second term. In 2015 he described the executive presidency as a political and moral calamity and an injustice. “We came to a clear decision with the UNP to abolish the executive presidency, I ask the people to give me the power to abolish the executive presidency in 100 days.”

Not abolishing the executive presidency cause of the recent political crisis.