Lankan Opposition to Challenge Parliament Dissolution in Supreme Court
Sirisena dissolved Parliament
COLOMBO: Sri Lanka’s opposition parties are to challenge in the Supreme Court on Monday, the dissolution of the country’s parliament, which was announced late on Friday by President Maithripala Sirisena.
“We are going to the Supreme Court first thing in the morning on Monday, November 12,” said M.A.Sumanthiran, opposition Member of Parliament, who is also a top Supreme Court lawyer.
Through a gazette notification dated November 9, Lankan President Sirisena dissolved parliament and announced that fresh elections to the House will be held on January 5, 2019, and that the newly elected parliament will meet on January 17.
The opposition’s point of view was best stated by the Lawyers of Democracy in their press release on Friday.
The release said that the “arbitrary move is clearly both unconstitutional and undemocratic.”
“The unconstitutionality is stark, in as much as Article 70 of the constitution expressly prohibits the President from dissolving parliament by proclamation without 2/3rds of the Parliament approving a resolution requesting him to do so at any time during the first 4-1/2 years of its term.”
It pointed out that the “President had actively obstructed Parliament from meeting, despite repeated calls and a written request from a majority (116) of Members of Parliament that Parliament must meet to demonstrate who enjoys the majority confidence of the House.”
“Based on this, the Speaker made an earnest and repeated request to the President, which the latter ignored."
"The obstruction of Parliament by a sudden prorogation was done without consulting the Speaker as per Parliamentary tradition.”
“The dissolution was part of a design to replace and supplant Prime Minister Ranil Wickremesinghe with former President Mahinda Rajapaksa. This was done, after a previous move to remove Prime Minister Wickremesinghe two months ago had failed to muster a majority in Parliament."
“Consequent to the removal of Prime Minister Wickremesinghe and the appointment of Mahinda Rajapaksa in his place, the lawful Cabinet of Ministers was declared as dissolved, in an effort to justify steps taken to make new appointments of Cabinet Ministers unconstitutionally."
“We note with grave concern and disappointment, that having contested the January 2015 Presidential Election as the common candidate to defeat the repressive regime of Mahinda Rajapaksa and having publicly pledged to re-establish the Rule of Law, President Sirisena has now betrayed the confidence of 6.2 million citizens who reposed in him, the confidence to establish democratic values and an ethical society,” the statement said.
“We also note with concern, that the purported appointment of a new Cabinet of Ministers during the last two weeks, was most evidently conducive to greater and easier abuse of state resources during a potential election.”
“President Sirisena has, by his unconstitutional actions, also now exposed individuals in all sectors, who acted honestly and in a forthright manner in furtherance of their duty towards good governance, to grave risk of retribution at the hands of a potentially repressive regime, which would derive its existence and de facto power by unconstitutional means.”
“The collaborative/collusive role and hand of Mr. Mahinda Rajapaksa in all these events, is beyond doubt.”
“Considering the grave predicament the country has now been plunged into, while strongly condemning the unconstitutional dissolution of Parliament, Lawyers for Democracy urge the Election Commission to act with fortitude and ignore the unconstitutional decision of the President to hold a general election while the Eighth Parliament of Sri Lanka has not been duly dissolved, but remains obstructed from meeting by unconstitutional, repressive and undemocratic measures.”
“We are firmly of the view that there is no legal impediment to the Speaker’s right to convene the Eighth Parliament on 14th November 2018, as planned.”
“We further reiterate that it is the duty of all actors and citizens to respect, uphold and defend the Constitution (the Supreme Law) in this perilous situation, where unconscionable, unpatriotic, diabolical and manifestly collusive, collaborative measures are being taken by President Sirisena and Mr. Mahinda Rajapaksa to bury constitutional process and protections as never before, depriving the People of Sri Lanka of the very essence of assured democratic governance,” the statement said.
Earlier, President Sirisena had issued a gazette saying that by virtue of the powers vested in him by paragraph (5) of Article 70 of the constitution of Sri Lanka to be read with paragraph (2) (c), of Article 33 of the constitution of Sri Lanka, 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, he, as President of Sri Lanka, was dissolving parliament with effect from midnight Friday and summoning the new parliament to meet on the January 17, 2019 and is fixing January 17,2019 as the date for election of the Members of Parliament.
However, the gazette appears to be constitutionally flawed.
The President has taken into account only those articles in the constitution which say that the President has the power to “summon, prorogue and dissolve parliament” and not the conditions attached to it.
The constitution says that parliament cannot be dissolved unless four and half years have been completed or unless parliament itself seeks dissolution by a two thirds majority vote. There is no room for an arbitrary exercise of power in this matter.
Parliament was dissolved on account of three political reasons:
The first and immediate reason was the Mahinda Rajapaksa government’s inability to face a No Confidence Motion which was due to be taken up after the reconvening of parliament on November 14.
The second and equally important reason was that President Sirisena did not want Wickremesinghe to win in the No Confidence Vote and become Prime Minister again.
Sirisena is strongly of the view that he cannot work with Wickremesinghe because of pronounced cultural, attitudinal, ideological and political differences. Sirisena hopes that Wickremesighe will be defeated in a general election and the more congenial Rajapaksa continues as Prime Minister.
The third reason is that it can be argued in court that the President left the decision to the people at large in an election because, ultimately, the people at large are sovereign, and that it was best that they decided.
No court would be able to deny the sovereignty of the people at large.
The Rajapaksa government was installed by President Sirisena on October 26 after sacking Prime Minister Ranil Wickremesinghe in a widely criticized move.
But the Rajapaksa government could not muster the support of a minimum of 113 MPs in a House with a total strength of 225 members to be in power and defeat the No Confidence Motion filed earlier by the Joint Opposition led by Wickremesinghe’s United National Party (UNP).
Only eight MPs from the UNP and the United National Front (UNF) had crossed over since October 26.
The Muslim and Tamil parties, which were with the UNP-led United National Front (UNF), had issues with Mahinda Rajapaksa when he was President of Sri Lanka from 2005 to 2014 on the ethnic issue. They refused to cross over to the Rajapaksa side.
When this became clear, President Sirisena had two options: One was to ask Rajapaksa to face the Motion of No Confidence and if he failed to make it, appoint Wickremesinghe again as Prime Minister.
The other option was to dissolve parliament and order fresh elections so that the people of Sri Lanka, in whom sovereignty ultimately resides, may decide which party should rule and who should be Prime Minister.
But President Sirisena could not envisage the prospect of re-appointing Wickremesinghe as Prime Minister because he had pledged that he would resign from the Presidency “within an hour” if Wickremesinghe had to be sworn-in as the PM.
Sirisena had publicly stated that he differed from Wickremesinghe in all respects, from politics and policy to culture. Their inter-personal relations had deteriorated to a point of no-return.
Sirisena had been at been at odds with Wickremesinghe for the past two years. Decisions taken by Wickremesinghe as Prime Minister were being over-turned almost daily by Sirisena as the country’s Executive President. And Wickremesinghe took decisions without consulting the Executive President.
The last straw on Sirisena’s back was his belief that Wickremesinghe was not properly investigating an alleged plot to kill him with foreign help.
Sirisena also kept complaining that the right wing Wickremesinghe was giving in to the Western powers’ demands on the ethnic, human rights and economic issues to the detriment of Sri Lanka.
Sirisena was also under tremendous pressure from his colleagues in the Sri Lanka Freedom Party (SLFP) to align with the Sri Lanka Podujana Peramuna (SLPP) led by Mahinda Rajapaksa who had broken away from the SLFP after he was defeated by Sirisena in the January 2015 Presidential election.
SLFP leaders and cadres, who could not work with the UNP as part of the SLFP-UNP coalition government, were pressing Sirisena to ditch the UNP and tie up with Rajapaksa who showed his tremendous popularity in the February 2018 local body elections.
Initially, Sirisena hesitated to break the alliance with the UNP because he had come to power with the help of the UNP. He hesitated to sack Wickremesinghe.
But with a sharp deterioration of his relations with Wickremesinghe,Sirisena yielded to his party men’s demand and sacked Wickremesinghe October 26 and appointed Rajapaksa as Prime Minister in his place.
The opposition, intellectuals, the media, and the international community protested vehemently, saying that the move was undemocratic because Wickremesinghe had majority support in parliament.
But the President said that he had the power to sack a Prime Minister. Sirisena also explained to the people why he could not get along with Wickremesinghe and why he desperately needed someone else to be Prime Minister so that government work could be conducted harmoniously.
Sirisena got more flak when he prorogued parliament from October 27 to November 16, apparently to give the new Prime Minister Mahinda Rajapaksa time to gather support from the opposition by engineering defections.
After parliament Speaker Karu Jayasuriya insisted that parliament be called immediately to settle the issue, the President issued a proclamation summoning parliament on November 14.
Meanwhile, Sirisena and Rajapaksa tried hard to get 113 to support them, but failed. Dissolution followed.