Setting a perilous political precedent

by Jehan Perera-November 26, 2018, 8:59 pm 

In a constitutional democracy, the constitution is the supreme law and governance cannot be on the basis of personal prejudices or the whims and fancies of individuals. The purpose of the constitution is to take political decision-making out of that personal realm to give stability and predictability to the government. It is now a month since the Black Friday of October 26 when the Sri Lankan polity was plunged into a constitutional and political crisis by President Maithripala Sirisena when he decided he had no option but to sack Prime Minister Ranil Wickremesinghe and his government, and just as arbitrarily to replace him with former president Mahinda Rajapaksa from the ranks of the opposition.

Most recently President Sirisena has reaffirmed to the international and local media that under no circumstances would he reappoint Mr Wickremesinghe as prime minister. He has also now added Field Marshall Sarath Fonseka to this list of non-options. The president’s understanding of his role as mandated by the constitution is an extremely personal one. It is almost as if he considers, his position as president as conferring personal rights in a constitutional setting in which his personal prejudices can take first place. The president has since that fateful October 26 offered a litany of reasons for sacking the prime minister including corruption, not paying attention to an alleged assassination attempt and not sharing information with him.

When the president spoke those words highlighting his personal frustrations and his motivations I was in Anuradhapura, next to the home district of the president, talking to the staff of a hotel who were unaware of the constitutional issues underlying the president’s controversial utterances. They were despondent for a different reason. They had just been informed that yet another tour group, this time consisting of 40 foreign tourists, had cancelled. Even though the embattled political leaders may not be realizing it, the staff could see their hope of a year’s end bonus to treat their families recede.

The manager of the hotel was more prepared than his staff to express his opinion on the political crisis that had jeopardized all their incomes. He opined that the politicians in parliament were no better than a pack of wolves. But having said that he made it clear that he preferred some wolves over others. When I asked him what did the people think about the current situation and the political crisis he said that the people were happy that Prime Minister Wickremesinghe had been shown the door and they were also happy that former president Rajapaksa had been appointed in his place.

ABYSMAL LITERACY

The staff and manager of that hotel in Anuradhapura were not aware of the legal and constitutional issues involved in the sacking of Prime Minister Wickremesinghe and his replacement by former president Rajapaksa. They saw the political crisis in terms of a fight for power between two political formations and in particular between the two leaders of those formations. The previous day a religious leader had asked me why Mr Wickremesinghe thought he should be reinstated when he had only 45 parliamentarians backing him. This is an indication of the abysmal state of political literacy in the country.

It is in this context that former president Rajapaksa has started seeking public support to have general elections as soon as possible. This campaign has a pragmatic basis and is a recognition that his government today has faced defeat in parliament on every occasion on which there has been a vote. The former president and his allies have been unable to get a majority of parliamentarians to support them despite offering them huge inducements in the form of money and position. The deadlock in government stems from this reason.

The former president’s direct appeal to the electorate is an indication that he currently has no intention of relinquishing the position of prime minister that has been given to him by President Sirisena. He was given this position arbitrarily and against the democratic norm that the prime minister’s position should either be given to the person who is most likely to command the confidence of parliament or to the leader of the largest single party. At the time of the dissolution of the government coalition, the UNF, headed by Prime Minister Ranil Wickemesinghe, was the largest single party.

So far President Sirisena has shown no intention of following the norms of parliamentary democracy and appointing the person most likely to command the confidence of the majority of parliamentarians as the prime minister. In the ongoing crisis he has shown himself to be impervious to political appeals in this regard. He has ignored two votes of no-confidence in the prime minister he arbitrarily appointed. He has not heeded the public demonstrations by tens of thousands of political and civic activists and members of the general public or the pressure of the international community.

JUDICIAL SALVATION

On the other hand, the only institution that President Sirisena appears to be willing to defer to is the judiciary. When he wished to extend his term by a further year, he sought an advisory opinion from the Supreme Court. He did not complain or oppose or seek to sack the judges who said that his term was five years and not six years in terms of the 19th Amendment. When he decided to sack parliament after having sacked the prime minister, he did not publicly complain or oppose the judicial stay order. The willingness of the president to respect the judiciary, which has emerged as the arbiter between the executive and legislature in their clash needs to be appreciated.

Ironically, it was President Sirisena himself who gave leadership to the passage of the 19th Amendment at the time it was being framed, and took considerable pride in its reining in of the powers of the presidency. This supreme law was passed in 2015 by a nearly unanimous vote in parliament with only one MP opposing it. But now it appears that the president, the polity and the general public need to be educated about the meaning of the 19th Amendment. The 19th Amendment reduced the president’s powers and made this branch of government to be co-equal with the legislative and judicial branches.

This message of the 19th Amendment was understood by the university students from Rajarata University where I took part in the discussion. The staff of the hotel and their manager might have understood it too if they had joined our discussion. The president may wish to have his preferences met informally. But he cannot insist on having his prejudices accepted formally. It cannot be that the country’s future should be determined by the president’s personal likes and dislikes and that the determination of prime minister, government, cabinet of ministers and the state of the economy should be the subject of his personal discretion.

The path that is collectively decided now in this crisis will determine what is done in the future. The space given to presidential arbitrariness in the present will be the space provided for arbitrariness in the future by miscellaneous individuals who will preside on the political stage for a brief while but will take decisions that have lasting consequences. The decisions made today will determine how the country will be governed in the future. President Sirisena should not be encouraged to set a precedent so that the personal likes and dislikes of a future president will determine who the future prime minister, cabinet of ministers and state of the economy will be.