Constitutional turmoil: Moves and countermoves
Secret events that led to Sirisena’s decision to dissolve Parliament; the numbers were there and not there Several Muslim MPs were about to join the Rajapaksa group, but changed their minds and were sternly rebuked by their leaders
President Maithripala Sirisena dissolved Parliament at midnight on Friday and declared that parliamentary elections would be held on January 5 next year. This is the second Friday night shocker in a fortnight for Sri Lankans and came just 24 hours after the Government officially declared through the Government Information Department there would be no dissolution. In politics, which makes strange bedfellows, what is said yesterday is not what is done the next day. Not by anyone who has solemnly sworn to adhere to good governance, now a very cheap brand name.
Nominations will be held from November 19 till noon on November 26 in 22 electoral districts, a proclamation said, adding that a new Parliament would meet on January 17 next year. President Sirisena is preparing to address the nation to give reasons why he took this course of action.
Amid views that existing constitutional provisions debar the President from dissolving Parliament, the proclamation cited that it was being carried out with powers vested in the President by “paragraph (5) of Article 70” of the Constitution to be read with paragraph (2) ( c ) of Article 33 and paragraph (2) of Article 62 and “in pursuance of the provisions of Section 10 of the Parliamentary Elections Act No 1 of 1981.
The dissolution is the direct result of two reasons: The first is Parliament Speaker Karu Jayasuriya’s insistence that he would list a “floor test” (a test of numbers) in Parliament on November 14. This is the date when the House, which was set to resume after prorogation, would have seen a policy statement of the government by President Sirisena. Though there are no precedents, the Speaker declared to the Sunday Times, “I will act according to my conscience. I have to protect the rights and privileges of the majority MPs.”
However, Prime Minister Mahinda Rajapaksa countered this position. He told the Sunday Times,
“There is no provision in the Standing Orders for such a course of action. He (the Speaker) could only act on a substantive motion and a debate on such a matter could only take place after consulting party leaders. This is arbitrary and he has not acted independently.” On Friday night, President Sirisena brought under the Ministry of Defence the Department of Government Printing. Army and Police Special Task Force personnel were deployed to guard the institution. This was after reports that Speaker Jayasuriya had asked the printing of an Order Paper with the “floor test” being listed to be taken up on November 14. The new government leaders feared it would lead to an open confrontation between two sides in the House. They also feared this would lead to President Sirisena being humiliated and insulted.
The second is the numbers game. As details revealed in these columns today will confirm, the new government had a trying time raising 113 MPs to support it in a 225-member Parliament. At one point it was on hand and the next moment there were worries some MPs may slip away. President Sirisena complained that huge amounts of money were being offered, not surprisingly, for this has become a culture for all parties.
The United National Party (UNP), the ousted partner in President Sirisena’s coalition, was furious over the dissolution. There were indications yesterday the UNP would challenge the move in the Supreme Court. Its leaders were busy consulting legal opinion yesterday. UNP Chairman Kabir Hashim told the Sunday Times,
“Our party has never been frightened or worried over elections. We were threatened and state terrorism has been used against us. The government is used to abusing state machinery. In fact, during our rule some faced charges before courts. Now they may go scot free. The dissolution is illegal, undemocratic and unparliamentarily. We will study the legal side. Otherwise, we will take part in democratic activity against anything that is forced on the people illegally.”
Ahead of the dissolution of Parliament, President Sirisena chaired a string of top level meetings on Friday at the Presidential Secretariat. At one meeting, Dilan Perera raised the issue of powers of the Speaker of Parliament. The President said such executive orders were issued by the President. He said it was by gazette that Parliament was prorogued. A new convening date was announced. He asserted that “there is no way the Speaker of the prorogued House could convene Parliament at his will, just as you are not supposed to hear your own case.” Premier Rajapaksa was also at the meeting. It is here that they decided on a dissolution of Parliament. Both held the view that it was difficult to move forward in the light of the Speaker’s stance, said a source close to the President. Both leaders were conscious of the fact that the term of a new Parliament would run when a presidential election is held.
UNPers argued that constitutional provisions debarred the President from dissolving Parliament until it had completed four and half years. This is what Article 70 of the Constitution, which facilitated the prorogation, through a proclamation issued by President, (in terms of the 19th Amendment) states: “(1) The President may by Proclamation, summon, prorogue and dissolve Parliament. “Provided that the President shall not dissolve
Parliament until the expiration of a period of not less than four years and six months from the date appointed for its meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”
However, Sirisena has been told by his legal advisors that this provision has been introduced only at the Committee Stage when Parliament was taking up the 19th Amendment to the Constitution. They have opined that it was not in the original draft 19th Amendment that went before the Supreme Court to determine its constitutionality. Since there was no provision in Sri Lanka for a post-judicial review of matters that went through Parliament, legal advisers claimed “the provision had been smuggled.” Hence, they have argued that the provision that empowers the President to dissolve Parliament still remains. It has been pointed out to Sirisena that two “constitutional experts,” one backing the UNP and another from a northern political party, were responsible for this situation and had acted at the behest of a politician. They had allegedly left many a loophole, Sirisena had been told.
Another argument cited by President Sirisena’s legal advisors is a reference to a Supreme Court determination on the President’s powers sought by then President Chandrika Bandaranaike Kumaratunga. In terms of this ruling, it was pointed out to him that the SC had ruled that the powers of the President could not be removed unless without a two thirds majority in the House and a referendum thereafter. This opinion was to further strengthen the arguments of the legal advisors.
UNP lawyers pointed out that the President had abided by all that is required in dissolving Parliament through Article 70, i.e. issuing a proclamation, gazette etc., except abiding by the proviso that forbids him from doing so for four and half years. “Why did he follow those procedures except the proviso”, asked a member of the UNP legal team that was having discussions with the Tamil National Alliance (TNA) and the Janatha Vimukthi Peramuna (JVP) yesterday on going together before the Supreme Court, which sits as the Constitutional Court.
Advisors of both President Sirisena, Premier Rajapaksa together with the two leaders as well as their seniors also discussed the upcoming campaign for the polls on Friday. This is where they reached broad agreement on an alliance of their respective partner parties.
There are still differences of opinion. Basil Rajapaksa is in favour of fielding candidates under the Pohottuwa symbol. However, there are those in the Sri Lanka Freedom Party (SLFP) who insist their identity should be preserved and their symbol should be retained.
President Sirisena was in Kandy yesterday. The matter is to be discussed by the two sides when he returns today.
At one of the discussions, it was pointed out that some foreign countries were sending out television crews to cover Parliament proceedings to project what was called a “chaotic situation.”
Even if the claim is true, it is only because developments in Sri Lanka have generated so much interest. President Sirisena’s own appointees at diplomatic missions, at the Foreign Ministry and at media institutions have failed miserably to cope with an exacerbating campaign against him and Premier Rajapaksa. In the case of Rajapaksa, the stains of killings and forced abductions, directed at the then Ministry of Defence, appeared very much alive. The result – the country’s economy, including the tourism industry, has been made very vulnerable. Considerable damage has already been caused. Contrary to confident assertions, first to the
Sunday Times last week and later at a rally on Monday, where tens of thousands gathered near the Parliament complex in Kotte, President Sirisena was unable to muster 113 MPs. It was so close at one time and became yet so far as events continued to unfold this week. Thus, far from receding, the political turmoil portended to escalate to newer levels as a relentless hunt for crossovers turned futile.
In behind-the-scenes negotiations, the majority of 113 was almost on hand as Sirisena negotiated with both the Sri Lanka Muslim Congress (SLMC) led by Rauff Hakeem and the All Ceylon Makkal (People’s) Congress led by Rishad Bathiuddin. The two, who style themselves as political leaders of the Muslim community, also met together for a one-on-one at a Colombo apartment hotel to discuss what another crucial issue seemed for them – whether one should join without the other. They were agreed it would be both or none. The SLMC has seven MPs and the ACMC five.
The Sunday Times learnt that Hakeem’s talks with President Sirisena centred on his party signing a Memorandum of Understanding (MoU) with the government. Those related to addressing “the needs” of the Muslim community. For Sirisena and his backers, there was at least good news from three SLMC parliamentarians who were in favour of joining. They were Syed Ali Zahir Mowlana, (the only elected MP from the SLMC ticket whilst others were from UNP), H.M.M. Harees and another. Two others, from the ACMC were Abdullah Mahroof and S.M. Mohamed Ismail, were also lined up to join.
The Sri Lanka Podujana (People’s) Peramuna ideologue and strategist, Basil Rajapaksa, was of the view that leaders of the two parties should also be roped in. Until then, he opined, those wanting to come over should not be sworn in with portfolios. In fact, Dr S.M. Mohamed Ismail, an ACMC National List MP, was to be sworn in as Deputy Minister of Health. He holds a UNP slot given to the ACMC and was earlier at the South Eastern University where he had been charge sheeted for demanding sexual favours. A last minute intervention by Basil Rajapaksa halted the move and Ismail met Bathiuddin. The move was to appease the ACMC leader who was infuriated that one of his MPs was to be pinched without his consent. He even refused to talk to the new government emissaries but later cooled down.
Two Muslim party leaders thought the best way to avoid all pressure was to leave Sri Lanka. They have not, it appears, conclusively decided on whose side they will throw their weight. The new government leaders learnt that their decision would be made known to them when the group of twelve return on November 12, two days before the reconvening of Parliament. On the other hand, the UNP leadership had learnt from the two party leaders that their support to them had not ceased. Whatever the outcome would be, a fracture in the two parties was to become inevitable if Hakeem and Bathiuddin chose to back the UNP. Government leaders felt the situation was mercurial and could not be fully relied upon.
On Thursday afternoon, all 12 MPs of the two parties flew to Mecca for Umrah – an Islamic pilgrimage which can be performed in the Holy City of Mecca (Saudi Arabia) at any time of the year. This is in marked contrast to the Haj for which a pilgrimage is undertaken once a year.
It appeared that both party leaders were following the founding leader of the Muslim Congress,the late M.H.M. Ashroff. During the October 2000 parliamentary elections, Ashroff fell foul with his then cabinet colleague A.H.M. Fowzie over some remarks that the latter made. When the then President Chandrika Bandaranaike Kumaratunga, tried to reach him, he wrote a lengthy letter to her and went on Umrah pilgrimage. In that letter, he said, he would support a new government but would not accept any portfolio. No sooner he returned, emissaries lined up a late night meeting. Ashroff descended on her with a parcel of dates and zam zam water from the well in Mecca considered sacred to Muslims. Differences were resolved thereafter.
The Sunday Times learnt that the government numbers in Parliament now stood at 107 MPs as against 108 earlier. One parliamentarian, Manusha Nanayakkara who crossed over from the UNP to the SLFP in 2010, has gone back to his previous party. He and his family are now in Singapore. The
projected five from the two Muslim parties would have brought the total to 112, one short of the required majority. Yet the situation was fragile. There were still fears that one or two within the government’s own ranks could desert. Also in Singapore now is P. Harrison, a former UNP Cabinet Minister who was earlier wooed by the parties in the new government.
Compounding the uncertainty this week is a turn of unexpected events surrounding Speaker Karu Jayasuriya. That was to become the number one reason for the dissolution. It came after the ouster of Prime Minister Ranil Wickremesinghe. The appointment of Mahinda Rajapaksa was gazetted on October 26. A second Gazette, issued on October 27 prorogued Parliament from noon that day till 10 a.m. on November 16. It was later advanced to November 14.
On the ouster of Ranil Wickremesinghe, a debate on whether it is constitutional or otherwise, continues. This naturally has focused the spotlight on Parliament and a clamour for its early reconvening. The UNP (albeit the United National Front) has thrown its full force behind the move in the strong belief that it could demonstrate that it commands a majority in the House. Thus, the UNP believes, it would be able to prove Ranil Wickremesinghe commands majority support to be Prime Minister and his position should be restored. Even if UNP leaders declared his ouster as a constitutional
coup d’état and threatened to impeach Sirisena, Wickremesinghe told the Chennai based The Hindu newspaper’s Sri Lanka Correspondent Meera Srinivasan in an interview that he was willing to once again work with Sirisena. Whether this was a mea
culpa (through my fault), posturing or forebodings of a possible dissolution of Parliament is not clear.
Herein lay a serious dilemma that had led to the dissolution move. Speaker Karu Jayasuriya was caught between a moral and a legal dynamic or between two different worlds. A closer study of his responses after the prorogation underscores this reality. Firstly, though clouded in claims that it is “undemocratic,” the prorogation itself has not been a subject of accusations either over any constitutionality or illegality, unlike the sacking of Prime Minister Ranil Wickremesinghe. True, in keeping with hallowed conventions, the Speaker had not been consulted on the prorogation. At most, that meant, a convention had been breached.
The day after the prorogation, on October 28, Speaker Jayasuriya wrote to President Sirisena informing him that prorogation until November 16 “will have serious and undesirable consequences” and urged him to reconsider. He also drew his attention “to the convention that a prorogation should be done in consultation with the Speaker.” The letter was prompted by what he called “the serious political – constitutional crisis which has arisen” and a request to him to “protect the rights and privileges of Ranil Wickremesinghe until any other person emerges from within Parliament” securing its confidence to be Prime Minister. His letter, nevertheless, did not contest the prorogation which was duly carried out but the appeal to have it reconvened earlier underlined its acceptance.
However, a statement issued by him last Monday (November 5) reflected a marked shift in position. Asserting that it was his “paramount duty” to act in accordance with his conscience, he said, that a request sent to him by the UNP, the TNA, the JVP and the Muslim Congress said that the “decision made by President Sirisena was unconstitutional and undemocratic.” As they are not in agreement with the President’s decision, he declared, “the Parliament should be summoned forthwith” to seek approval on their claims that is “extremely reasonable.”
Speaker Jayasuriya pointed out, “At a time it has been brought to my attention by the majority that the lawful summoning of Parliament has been prevented and the rights of the members of Parliament have been usurped, in the name of justice and fair play. I have to make my stance known to the world. As the majority is of the opinion that all changes made in Parliament are undemocratic and inconsistent with traditions of Parliament, and as the majority of Parliamentarians have requested that the status that existed before these changes were made shall be accepted. I wish to emphasise that I am compelled to accept the status that existed previously until such time that they and the new political alliance prove their majority in Parliament.”
There is no question that Speaker Jayasuriya’s stated position had sound moral reasoning. Yet, there were questions over whether he had crossed the legal threshold as Speaker and has himself violated a convention. More surfaced when he
summoned an informal meeting of party representatives in Parliament last Thursday. The idea was to examine how to move forward with the signed request from 118 MPs for a test of strength on which side had the majority support. There were heated exchanges between the UNP side and those who represented the Government. The Speaker wanted a floor vote or a count of which side each MP supported before the delivery of the policy statement by President Sirisena.
Dinesh Gunawardena, who was appointed Leader of the House, Mahinda Samarasinghe, Faiszer Musthapha, Thilanga Sumathipala, Chandima Weerakkody and Udaya Gammanpila, who represented the Government side argued that there should be a substantive motion seeking a floor vote. They argued that it would have to be placed in the Order Book for five days before it appears in the Order Paper. They claimed that the Speaker had no right to seek a floor vote. The Speaker did not heed a call by the government side to show the letter signed by 118 MPs but insisted “I have to go by my conscience.” He declared “I am putting it to a floor vote.”
Countering the arguments were UNP’s Lakshman Kiriella, Ajith Perera, JVP’s Anura Kumara Dissanayake, Rajitha Senaratne, Ravi Karunanayake and Patali Champika Ranawaka, the Jathika Hela Urumaya (JHU) leader. They said as the custodian of the House, it was the Speaker’s prerogative to heed the request of the majority MPs. There were angry verbal exchanges between the two sides. Dinesh Gunawardena said the meeting ended inconclusively. Patali Champika Ranawaka, who represented the UNF, argued that a decision was in fact made to have a floor vote. “Mang hithuwey nehe Jayasuriya echcharatama naraka minihek kiyala” or I did not think Jayasuriya was such a bad person, declared an angry President Sirisena when he heard of the informal party representatives meeting with Speaker Jayasuriya. He was at a meeting with his close supporters. “Eya janadipathi varayage balathala danne
nethuwa kathaa karanney” or he is talking without knowing the powers of the President (in the Constitution).
Under normal circumstances, when Parliament reconvenes after prorogation, the President, if he so decides, makes a statement of policy of his government. This replaced the traditional throne speech which flowed from the British colonial era. On occasions when the policy statement is delivered by the President, it is he who takes the chair with the President’s emblem (in place of the Speaker’s emblem) and conducts business of the House including an announcement on the date and time to resume sittings after adjournment. The Speaker sits one step below, between the Secretary General and the Deputy Secretary General on such occasions.
Speaker Jayasuriya told the Sunday
Times before dissolution of Parliament, “If necessary, I will discuss with the party leaders the agenda for November 14. A floor test will have to be taken. Once it is done, things in the country will return to normal.” He strongly defended his action in meeting heads of diplomatic missions in Colombo. “I initiated parliamentary diplomacy for the sake of the country. There are contacts between heads of state and foreign ministers. What is wrong if I launch an initiative to meet diplomats of foreign countries to ensure more goodwill and understanding?” He said seating for the new Prime Minister as well as Ministers had been assigned in the front row. Similarly, front row Opposition benches had been assigned whilst for the rest, it would be free seating.
SLFP Deputy Leader Nimal Siripala de Silva, however, was critical of Speaker Jayasuriya. He told a news Conference on Friday that “At our first informal meeting, the Speaker recognized the gazette. The Prime Minister (Mahinda Rajapaksa) could go to his office in Parliament. He accepted Dinesh Gunawardena’s appointment as Leader of the House. He then issues press releases to the contrary. We believe that the Speaker has been pressured by someone.”
However, UNP Chairman Kabir Hashim defended the Speaker. “The Speaker has remained above politics. There is no doubt about that. He has to uphold the supremacy of Parliament. He has to safeguard the rights of the parliamentarians. The people look to him to do that without fear or favour,” he said.
A head on confrontation between those in the United National Front (UNF), albeit the UNP and government leaders would have become inevitable if there was a floor count of MPs either before or after President Sirisena’s policy statement. In the current acrimonious situation, a disruption when Sirisena makes his speech was also feared. “Heckling and hurling insults to the President, if it were to happen, would have been humiliating. He was conscious of this,” said a source close to President Sirisena.
President Sirisena asserted at his party’s All Island Central Committee meeting at Apey Gama in Barraramulla on Thursday night that he was prepared for any eventuality. He said he had the answers if anyone were to create issues. It indicated that a dissolution of Parliament was also on his mind. Earlier, he had also considered a referendum to seek a vote from the people whether they wanted early elections. However, the move was dropped after it was pointed out that MPs on both sides of the divide would not favour the move for they would lose their right to pensions. An MP would have to serve a term of five years. However, the proposed dissolution has put paid to the move. MPs have been informally told that the matter would be rectified later.
The All Island Central Committee meeting also adopted amendments to the SLFP Constitution. A highlight is the setting up of a 15-member Politburo which will function at the top of the Central Committee. One of its main tasks is to evolve measures for reconciliation between the SLFP and those in the former “Joint Opposition.” After this was adopted, President Sirisena asked participants, “How many of you who have endorsed this amendment know what this is all about?” There was pin drop silence. “This endorsement is the acknowledgement of the trust you have placed in me,” he said. Amendments also confer additional powers to the Chairman of the party and has streamlined procedures for disciplinary inquiries.
A significant feature at the meeting was the retaining of mobile telephones of Ministers and MPs by the Presidential Security. No one was allowed to carry them to the meeting for fear of recording or letting those outside to hear what went on. In what now appears to be the reasoning for the dissolution of Parliament, President Sirisena also told the Executive Committee that bags of money were being offered to his group of MPs to cross over. He urged members to make this public at their own meetings. It is not unusual for money bags to change hands to win support of those on either side. However, the stakes have been much higher this time. Money changers, a business source said, had converted Rs 250 million from US$ 100 bundles of notes.
President Sirisena also declared at the Executive Committee meeting “do not worry about the outcome on November 14 in Parliament. We have the majority. In any case, I have more trump cards (Magey langa
thava thurumpu thiyanawa). Though without making direct reference, he was alluding to the dissolution of Parliament. At one of the discussions, even Basil Rajapaksa, who was not sure of a Parliamentary majority, favoured the idea.
Prime Minister Mahinda Rajapaksa, notwithstanding the dissolution move, finds himself in a win-win situation. “I am not interested in numbers. It was not my task to find people,” he told the Sunday Times. In fact, Rajapaksa did not hide his feelings when he admonished his new Minister S.B. Dissanayake who had made him believe the numbers were on hand. Instead of campaigning at the upcoming elections from the Opposition side, he and his Ministers will now do so with official positions, no doubt an advantage that earlier remained with the UNP.
As revealed exclusively in the Sunday
Times (Political Commentary) the precursor to the new government was a meeting by Sirisena with both Mahinda and Basil Rajapaksa at S.B. Dissanayake’s Battaramulla residence. Despite Dissanayake’s denials, it is now clear he not only hosted but also promised numbers. He could not, however, deliver. Even late last week he was going on showing a brave face on tv about having the numbers and that it was they who sent the Muslim MPs to Mecca to keep away till November 14. It is also known that though he promised, he failed to deliver numbers for the No-Confidence Motion against ousted Premier Ranil Wickremesinghe in April this year.
Rajapaksa said even in Opposition, he had clamoured for elections as soon as possible. He said the presentation of an On Account Vote in Parliament was not necessary. “We can go on for three months,” he said and added, that “a vast loan repayment is due from Sri Lanka on November 19.” He, however, declined to elaborate.
The dissolution of Parliament also turns the spotlight on the UNP. The debate on the constitutionality of ousting Wickremesinghe from the post of Premier apart, the party has been caught flat footed on the recent events. One was the absence of any strategy on its part when it learnt that President Sirisena was locked in a dialogue with his one-time arch rival and predecessor Mahinda Rajapaksa. In fact, Wickremesinghe was abroad. When he was ousted, Wickremesinghe was in Galle and had to rush back to Colombo. Reactions became ad hoc with former ministers and deputies speaking in different voices. One joke was when the state run Daily News ran a news story with a photograph of Gayantha Karunatilleke, one of three official spokespersons of the then coalition. The story, just a day before Wickremesinghe was ousted, declared there were no differences at all between President Sirisena and Premier Wickremesinghe.
For the UNP, there is a great deal of re-thinking to do now. The party needs a new positive image that it is now in the hands of those who are capable and not a handful coterie. There are smaller sections who have launched a campaign that the UNP should boycott the parliamentary elections on the basis they are “illegal” and “undemocratic.” Would that not give a walkover or a very large majority to government parties? Would that not facilitate a new Constitution? On the other hand, they feel the President’s actions have garnered support for it from pro-democracy forces as was seen in the protest rallies following the prorogation. After the 2015 elections, the UNP banked on western nations for aid for Sri Lanka to usher in economic prosperity. It never came and the party complained publicly about it.
It is time they break from the sole dependence on them or their heart thumping, tear jerking pleas to save democracy and instead concentrate more on winning the hearts and minds of the Sri Lankan people. It is no classified secret that the UNP remains partly or largely isolated from the people. The reasons are many. None of those countries uttered a word when Provincial Councils elections, a part of the democratic process, were not held. It is no secret that their own geopolitical interests are what matters most to them and they will not drop boots on the ground to save democracy. Not even when some have welcomed them with open arms.
The new Sirisena-Rajapaksa alliance will have to be taken seriously. And for this, the UNP needs to have a credible, positive campaign at the polls. For that, it needs to have a credible, capable party and shed the bad image it has earned. It has a lot of lessons to be learnt and plenty of corrections to be made. Though distasteful, the party in more than one way unwittingly facilitated the alliance between Sirisena and Rajapaksa through its day-to-day governance. The result is a challenge for the UNP now. It now has to fight a onetime friend and now a foe together with a long-time secret friend who is now an arch enemy.
At a Business Class Lounge at the Bandaranaike International Airport before they left for Umrah pilgrimage in Mecca, Sadui Arabia. Rishad Badiuddin, the ACMC is fourth from left. They are together with an airline employee dressed in Ehram – the white non-stitch pilgrim attire made of white cloth.