P.K. BALACHANDRAN | 22 NOVEMBER, 2018
Fresh Parliamentary Elections Only Way Out of Lankan Logjam
COLOMBO: Fresh parliamentary elections may be the only way out of the logjam Sri Lanka finds itself in at present, and for the foreseeable future.
The opposition is trying its level best to use its parliamentary majority (122 out of 225 seats) to deny funds to the government, fully knowing that if a Vote on Account is not passed, the newly installed Rajapaksa regime will not be able to pay government servants and meet routine expenditure including foreign loan repayments.
After passing two No Confidence Motions (NCM) against the government (albeit in a highly questionable way), the opposition has declared that government has ceased to exist and that it cannot draw from the exchequer.
It has warned department secretaries that they will be liable to punitive action if they disregard a parliamentary resolution on the use of funds. The resolution may come up for discussion on November 29, according to one source.
The two warring parties - President Maithripala Sirisena and Prime Minister Mahinda Rajapaksa on the one hand, and ousted Prime Minister Ranil Wickremesinghe and the opposition parties on the other - appear to want to fight to the finish irrespective of the consequences to Sri Lanka.
In other words, there is a deadlock, an unprecedented logjam.
President Sirisena has said categorically that he will not appoint Wickremesinghe as Prime Minister because he has found it impossible to work with him.
But the opposition is holding on to the view that a grave injustice had been done to Wickremesinghe when he was summarily dismissed from the Premiership though he had a majority in parliament. And if anyone from the opposition is to be PM, it will have to be Wickremesinghe and Wickremesinghe only.
The opposition has passed two No Confidence Motions (NCM) against Rajapaksa on November 14 and 16, albeit controversially flouting parliamentary rules in connivance with the Speaker Karu Jayasuriya.
It has also presented a motion to the Secretary General of parliament which says that after the passing of the NCM on November 14, Rajapaksa and his council of ministers could not be deemed to be in office and that the Secretaries of their respective ministries should not draw State funds to pay the ministers’ salaries and meet their other expenses.
The six MPs who had signed the motion have warned the Secretaries to the ministries that they would be penalized as per law if they disregarded the parliamentary resolution.
A group of opposition United National Party (UNP) MPs led by former Finance Minister Ravi Karunanayake said that on November 29, parliament will discuss a resolution to deny the Prime Minister’s Secretary the right to disburse State funds.
The sacked Finance Minister Mangala Samaraweera said in a statement on Tuesday that as per Article 150 (2) of the constitution, only a legitimate Finance Minister can sign a warrant to release funding and Rajapaksa is not a legitimate Finance Minister.
Rajapaksa, the Prime Minister, is also the Finance Minister.
Since the Rajapaksa government was voted out in parliament on two No Confidence Motions, all payments of the government from January 1, 2019 are illegal and cannot be made by public servants, Samaraweera said.
Some of the critical areas which will be affected by the funds squeeze are public sector salaries, pensions, welfare payments including the Samurdhi welfare scheme and debt repayments.
Because the “purported Prime Minister” Rajapaksa and his cabinet are illegitimate, all Ministry Secretaries cease to exist, and any actions taken by them are null and void and illegal, Samaraweera added.
Any actions of Ministry Secretaries will be serious violations and would be punishable under the Public Property Law and other relevant legislation, he warned.
Sri Lanka is on the brink of economic anarchy and chaos as never experienced before, he added and pointed out that in early January 2019, Sri Lanka will have to repay US$ 1 billion of loans taken in January 2014, the repayment of which is also under the purview of parliament.
“Sri Lanka has hitherto never defaulted its debt obligations. The actions of 26th October have irreversibly undermined Sri Lanka’s credibility in global markets - risking our ability to service future debt as well,” Samaraweera said.
“We are being pushed towards a state of economic collapse as we stumble on to a road of a Greece like situation,” he declared.
“The only way to rescue Sri Lanka from this unfortunate and unnecessary crisis is for the President to recognize Ranil Wickremesinghe as Prime Minister as was the case prior to October 26,” the former Finance Minister suggested.
But President Sirisena is determined not to re-appoint Wickremesinghe as Prime Minister because he considers his differences with him to be un-reconcilable, on personal, cultural and ideological grounds.
Sirisena has refused to recognize the two No Confidence Motions passed against Prime Minister Rajapaksa on the grounds that the relevant rules for passing such a motion were flouted.
He has asked for a third attempt with the rules being observed to the letter. The country is waiting with bated breath for this third attempt.
Meanwhile, Sirisena has been trying to get somebody else from the opposition to accept nomination as Prime Minister in place of Wickremesinghe and Rajapaksa. But these efforts have borne no fruit as the opposition has remained united behind Wickremesinghe on this issue.
Unable to get crossovers, MPs of the Rajapaksa-Sirisena group have been stalling parliament proceedings by unleashing violence using the alleged use of a knife by two UNP MPs as an excuse.
The government side’s idea appears to be to disrupt parliamentary proceedings till December 7 when the Supreme Court is expected to give its ruling on the constitutionality of the November 9 Presidential gazette dissolving parliament and ordering fresh elections on January 5, 2019.
President Sirisena’s side argues that Art 33 (2) C of the constitution gives discretionary power to the President to dissolve parliament and order fresh elections and that the dissolution of parliament is perfectly constitutional.
It is argued that Art 70 (1) does not take away the discretionary power of the President vested in Art 33 (2) C. According to Art.70 (1), parliament can only “request” the President to dissolve the House after passing a resolution to that effect by a two third majority.
Art 70(1) does not say that the President is bound by the parliament resolution. In other words, the President’s discretion as stated in Art 33 (2) C. remains untouched after the 19 th.Amendment of 2015.
If Art 70 I1) was indeed a fetter on Art 33(2) C, the Supreme Court in its determination on the constitutionality of the 19 th.Amendment in 2015, would have said so and called for a Referendum on the issue.
The Supreme Court had said that any provision in the 19 th.Amendment which diluted the basic structure of the Lankan constitution would have to be passed by a two thirds majority and submitted to a Referendum. The Executive Presidency is the defining principle of the constitution. Sri Lanka is not a parliamentary democracy but a Presidential one.
If Art 70 (1) was a violation of the basic Executive Presidential system, the Supreme Court would have called for a two thirds majority in parliament and followed by a Referendum. But did not. Therefore, the discretionary power of the President under Art 33 (2) C remains, it is argued.
It is further held that nobody can object to handing over the issue to the will of the people at large, because the people of Sri Lanka are the final repositories of sovereignty.
But the opposition parties argue that the 19 th. Amendment of 2015 had introduced a new clause - Art 70 (1) - which says that parliament cannot be dissolved before it has completed four and half years of its five year term unless parliament itself, by two third majority, passes a resolution seeking dissolution. Art 70 (1) is indeed a fetter on Art 33 (2) C.
If the court rules that the President has the prerogative to dissolve parliament and order fresh elections, irrespective of the conditions attached to it in another article of the constitution, Rajapaksa should be happy because it is his wish to go for an early election to tap his mass popularity.
The non-performing Wickremesinghe government has a created a huge political vacuum which Rajapaksa hopes to fill.
But on the other hand, if the court nullifies the gazette dissolving parliament and ordering fresh elections, Rajapaksa and his party will have to quit the government. This will be a big blow to the political prestige of Sirisena and Rajapaksa.
Rajapaksa, who had occupied the Lankan Presidency twice and had been a Prime Minister before, had accepted the Premiership when he was suddenly offered to him on October 26, in the hope that he will get the support of the required 113 MPs because of his growing popularity among the masses.
But the gamble failed. The Wickremesinghe-led UNF stood united and had the strong support of the TNA and JVP. Some MPs who had crossed over, crossed back to the UNF.
On November 9, President Sirisena dissolved parliament and ordered fresh polls on January 5, 2019.
The opposition promptly filed a petition in the Supreme Court, challenging the dissolution. A three-judge bench of the court stayed the dissolution till December 7.
The government then filed a petition for the setting up of a full bench as the matter is of great constitutional importance.
Once parliament re-assembled on November 14, the opposition moved a No Confidence Motion (NCM).But Speaker Karu Jayasuriya, circumvented the established rules and the Standing Orders and put the NCM to a voice vote amidst noise and violence.
The Speaker deemed the NCM carried. But President Sirisena rejected the result saying that the rules had been flouted brazenly. A second motion was moved on November 16 and that too was passed in a similar way under similar circumstances. The President again rejected it.
Currently, an attempt is being made to present the NCM in the established way when parliament meets again on November 23.
As stated earlier, the opposition is continuing the battle to unseat Rajapaksa by attempting to block funds needed to run the government.
The opposition is also trying to rope in the international community by holding meetings with Ambassadors of various countries especially the US, EU, UK, France and Germany which had issued statements expressing concern over the President’s action.
The Tamil National Alliance (TNA) told foreign envoys that if the crisis continues, rogue elements might unleash violence against the minorities, particularly the Tamils, because Tamil and Muslim parties are backing Wickremesinghe.
In case, the Supreme Court rules against the dissolution of parliament, and no one from the opposition other than Wickremesinghe is willing to take up the Premiership, the President may have to appoint Wickremesinghe.
What he would do is the million dollar question now. Would he swallow the bitter pill and put up with Wickremesinghe till Augus 2020 when parliament’s term ends? Or will be declare a State of Emergency on the grounds that the constitution has broken down and order fresh election to parliament?
The Sri Lankan Constitution does not provide a formal definition of a State of Emergency. Instead, the conditions that may give rise to the need for emergency powers are described in the Public Security Ordinance (PSO).
The President may issue a Proclamation of a State of Emergency where, “in view of the existence or imminence of a state of public emergency, he is of the opinion that it is expedient to do so, in the interests of public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community.”