Neville de Silva reviews the farcical events that have defined Sri Lanka’s recent constitutional crisis
Never in the history of Sri Lanka has the country been without a government. But President Maithripala Sirisena achieved this at the tail end of October when he suddenly sacked the Prime Minister furtively one night, plunging the country into unprecedented political turmoil.
What made the presidential action even more reprehensible is that he immediately replaced his Prime Minister with the former President, Mahinda Rajapaksa, whom Sirisena claimed would have had him buried six feet under had Sirisena lost the 2015 presidential election.
Not even at the height of the near 30-year war with the secessionist Tamil Tiger guerillas – when two of the country’s presidents were killed or wounded, civilians murdered by the hundreds in bomb attacks in and around the capital Colombo, and the country’s only international airport was fired upon – had the Sri Lanka government come to a standstill.
But nearly ten years after the war ended and peace returned, the country was without a functioning government for eight weeks until mid-December, with a parliament struggling to keep the flickering flame of democracy alive.
President Sirisena’s acts of political legerdemain might still have been causing havoc if two other pillars of the state structure – the legislature and the judiciary –had weakened under pressure. But fortunately, the country’s apex courts of law struck down the seill-advised presidential actions. The political chaos he created might well have spilled on to the streets from a boisterous and disruptive parliament, had not the Speaker, Karu Jayasuriya, held firm despite the physical violence inside.
The rogue-regime, as some mainstream and social media labelled it, which the President had stealthily installed along with his hitherto arch-enemy Mahinda Rajapaksa, was without a majority in parliament. Without a majority it was brought to a standstill, unable to pass even a Vote-on-Account, let alone the annual budget due in November. The important issue was how to tide over the first three months of the new year, enabling the government to pay the salaries of public officials and other state employees.
Here again the President and his new Prime Minister miscalculated. They were expecting MPs to cross over to the Rajapaksa administration to swell its parliamentary ranks. But the asking price for the political pole-vault was 500 million rupees, which the Rajapaksas could not afford – or so President Sirisena later claimed, thus denigrating some MPs as bribe-takers.
A bleak new year faced the people as an arrogant and ignorant President was misled, or misled himself, into believing that the constitution Sirisena and Prime Minister Ranil Wickremesinghe had amended in the early months of their governance nearly four years ago still retained the wide powers that the original constitution of 1978 bestowed on the country’s president.
Such were the powers that the architect of that constitution, President Junius R Jayewardene once observed – jokingly, perhaps – that the only thing he could not do under the constitution is to make a man a woman and vice-versa.
Although Sirisena and the Ranil Wickremesinghe-led United National Party (UNP) promised during the presidential election campaign at the end of 2014 to abolish the executive presidency, they could not do so. But they did pass the 19thAmendment that wiped out the Rajapaksa- initiated 18th Amendment, which was intended to favour the then President and his heir apparent, eldest son Namal Rajapaksa.
The 19th Amendment swept all that aside, including the President’s powers over parliament and limited the presidential term to two five-year periods, shuttering Rajapaksa from contesting the presidency once more.
Unfortunately Sirisena and his legal/constitutional experts and advisers misread or misinterpreted provisions of the constitution about the dissolution of parliament. After hurriedly installing Rajapaksa as successor to Wickremesinghe, the President prorogued parliament till mid-November, giving the new Prime Minister time to dangle inducements of one kind or another before MPs intent on creating a government majority.
But the trickle of cross-overs hardly satisfied the Sirisena-Rajapaksa duo, which was still short of numbers. When parliament met on November 14 it turned into bedlam, with supporters of the new government hurling chairs and other objects at the Speaker and other MPs, scenes that were captured on camera and televised to the country and even the world outside. Eventually the rebel MPs (from the new government) weaponised chilli powder dissolved in water, which was thrown at some legislators and the police protecting the Speaker, harming some.
Over the chaos and un-parliamentary conduct voice, votes taken showed that Wickremesinghe continued to have a majority. Sirisena refused to accept this, objecting to the procedure.
It was during those days of bedlam and boycott of parliament by the new administration that the legislature passed a vote of no confidence on what some called a ‘fake Prime Minister’ and a ‘rogue regime’.
Sensing that the regime he had installed would hardly acquire the needed numbers, Sirisena and his cohorts made a strategic error. Five days before parliament could meet on November 14 at the end of Sirisena’s two-week suspension of the legislature, he issued a Proclamation dissolving parliament and announcing a snap parliamentary election for January 5.
Ten parties, including the Ranil Wickremesinghe-led United National Party (UNP), the principal plank of the ruling coalition, civic society organisations and private individuals petitioned the Supreme Court, arguing that President Sirisena had violated the constitution and acted illegally in dissolving parliament.
While a three-member bench of the Supreme Court made an interim order crying halt to the dissolution until it heard both sides, a parliamentary majority passed a no-confidence motion against Rajapaksa and later challenged his appointment as prime minister before the Court of Appeal.
Hemmed in by judicial action on the one hand and parliamentary challenges on the other, Sirisena remained defiant. He said that even if the dissolution order was shot down by the Supreme Court he would ‘under no circumstances’ again appoint Wickremesinghe as Prime Minister – ‘never in his lifetime,’ he said.
With increasing intransigence, Sirisena said on another occasion that if Wickremesinghe was reinstalled, he, the president, would leave the presidential abode in an hour and return to his village. Yet again he promised not to appoint Wickremesinghe or anybody from his ‘clique’. His complaint was that he could not work with Wickremesinghe.
That evoked a riposte from Dr Nihal Jayawickrama, a Sri Lankan jurist and Coordinator of the UN-sponsored Judicial Integrity Group. Countering the constitutional interpretations of the Sirisena-Rajapaksa supporters, Dr Jayawickrama dismissed the President’s belief that he can decline to appoint Ranil Wickremesinghe as Prime Minister because he does not like and cannot work with him. The Constitution does not state that the President must like such a Member. ‘The Prime Minister is not the President’s employee,’ wrote Jayawickrama.
Shortly afterwards, Sirisena had to eat humble pie when he swore in Wickremesinghe for a second time after the Appeal Court issued a stay order stopping Rajapaksa and his cabinet ministers from functioning in their positions.
When Rajapaksa’s appeal to the Supreme Court to override the Court of Appeal stay order was rejected by the apex court, the controversially-appointed ‘Prime Minister’ threw in the towel and resigned. This cleared the way for Wickremesinghe to return to his former position.
What was challenged was the President’s power to dissolve parliament any time he pleases. But Article 70 of the amended constitution restricts that power and sets out the procedure that needs to be followed.
Briefly put, Dr Nihal Jayawickrama says the President is mistaken if he believes he can dissolve parliament at any time. The 19th Amendment states he can do so only in the last six months of the parliament’s five-year term. Otherwise he has to obtain a resolution from parliament passed by a two-thirds majority.
In its 88-page judgment given in mid-December, the expanded seven-member bench of the Supreme Court unanimously held that President Sirisena acted unconstitutionally and illegally and it held with the petitioners.
The world outside, especially, the West and India, commended Sri Lanka for resolving the political chaos. But welcoming Sri Lanka’s peaceful resolution of its worst political crisis seems to me to be premature. An embarrassed and humiliated Sirisena will not retreat easily. He surely harbours animosity towards Wickremesinghe and the UNP, for he castigated them for multiple ‘offences’ shortly after swearingin Wickremesinghe.
Like the Greek warrior Achilles, President Sirisena is probably sulking in his ‘tent’, having swallowed a concoction of the poor advice of his so-called legal and constitutional experts and his own stubbornness. But he will be planning other ways of hitting back at Wickremesinghe as the country moves closer to the presidential and parliamentary election in 2019-20.It will not be surprising if commissions of inquiry are appointed as one way of getting back at his bête noir and corralling the Wickremesinghe government for purported acts of malfeasance.
At the same time, Sirisena has his own Achilles’ heel. His violations of the constitution leave him open to impeachment if he overreaches himself in pursuit of vengeance.