From the fry­ing pan into the fire

Sunday Times (Sri Lanka) - - OPINION -

What a turn of events – again on a Fri­day night. The ‘good gov­er­nance’ Pres­i­dent first sus­pends an elected Par­lia­ment and then dis­bands it when, af­ter a fort­night’s search, he can­not find a ma­jor­ity that would jus­tify his de­ci­sion to sack his Prime Min­is­ter. What more will un­fold in this ‘con­fused State’, heaven knows.

The Con­sti­tu­tion, the ba­sic law of this coun­try, has been turned into a ‘mere scrap of pa­per’. And the one who boasted all over the coun­try­side, if not the world of be­ing the only Pres­i­dent who vol­un­tar­ily shed the Ex­ec­u­tive pow­ers of the Pres­i­dent, has be­come a ‘one man show’.

Clearly, the Pres­i­dent’s ad­vice has been based on po­lit­i­cal ex­pe­di­ency. There are two seem­ingly con­flict­ing Con­sti­tu­tional pro­vi­sions is the ar­gu­ment. One is fun­da­men­tally based on Ar­ti­cle 33 (2) (c) which gives blan­ket pow­ers to the Pres­i­dent to dis­solve Par­lia­ment at his wish. This pro­vi­sion comes from the orig­i­nal 1978 Ex­ec­u­tive Pres­i­dency Con­sti­tu­tion. The other view is the pro­viso of Ar­ti­cle 70 (1) in­tro­duced by way of the 19th Amend­ment by this very Pres­i­dent’s Govern­ment that pro­hibits him from dis­solv­ing Par­lia­ment for four and half years.

Apart from the irony of the Pres­i­dent and the SLFP re­ly­ing on the 1978 J.R. Jayewar­dene Con­sti­tu­tional pro­vi­sion to ar­gue their case, the ba­sic prin­ci­ple of law if there is a con­flict is that any later amend­ment, and the later “in­ten­tion of Par­lia­ment” must be given pri­or­ity. That apart, what­ever the ‘let­ter of the law’ maybe, has the Pres­i­dent gone by the ‘spirit of the law’ in call­ing for a snap elec­tion? No one seems to care th­ese days as long as the end jus­ti­fies the means.

The ‘con­fused State’ was worse con­founded this week when the Speaker is­sued a hard-hit­ting state­ment say­ing that in the ab­sence of proof to the con­trary, he con­tin­ued to recog­nise the ousted Prime Min­is­ter as the duly elected PM of Sri Lanka. Then came a state­ment from the Deputy Sec­re­tary Gen­eral of Par­lia­ment say­ing he would fol­low the Gazette (which recog­nises the newly ap­pointed PM), fol­lowed by a quote from Par­lia­ment’s Sergeant-at-Arms who said he would abide by the Gazette (new PM) and the Speaker’s in­struc­tions (old PM). What a com­edy, if it were not so tragic that this coun­try was sad­dled with two Gov­ern­ments, which in ef­fect meant no Govern­ment.

The Con­sti­tu­tional cri­sis pre­cip­i­tated by the Pres­i­dent’s ac­tions of Oc­to­ber 26, 2018 and com­pounded by the dis­so­lu­tion of Par­lia­ment by Fri­day’s mid­night Gazette, rekin­dles the story of the King (now the elected Pres­i­dent), an elected Par­lia­ment and the Sovereignty of the Peo­ple. In the Re­pub­lic of Sri Lanka, it is the Peo­ple who are sov­er­eign. And it all be­gan cen­turies ago when King Charles I in Eng­land stormed the Par­lia­ment one day, sat on the Speaker’s chair and de­manded the ar­rest of five MPs on grounds of trea­son.

The Speaker, Wil­liam Len­thall up­held the priv­i­leges of Par­lia­ment say­ing; “May it please your majesty; I have nei­ther eyes to see, nor tongue to speak in this place, but as this House is pleased to direct me, whose ser­vant I am here, and humbly ask par­don that I can­not give any other an­swer to what your majesty is pleased to de­mand of me”. A civil war fol­lowed, led by one of the MPs, Oliver Cromwell. The King was cap­tured, tried for trea­son, and ex­e­cuted.

Speaker Len­thall’s words im­mor­talised in the long his­tory of rep­re­sen­ta­tive democ­racy the first recorded in­stance when a Speaker as­serted the rights of Par­lia­ment and its Mem­bers. Sri Lanka’s now ‘ousted’ Speaker seems to have fol­lowed those long es­tab­lished tra­di­tions.

Par­lia­men­tary democ­racy has moved on from those vi­o­lent times and one would have ex­pected coun­tries like Sri Lanka, which gained Univer­sal Adult Fran­chise back in 1931, even be­fore In­dia, to have gained some sta­bil­ity and po­lit­i­cal ma­tu­rity, and not be prone to the whims and fan­cies of in­di­vid­u­als in power and place.

This past fort­night, the peo­ple wit­nessed a dis­gust­ing saga of se­cret calls and meet­ings, sto­ries of money bags, of­fers of the perks of min­is­te­rial of­fice, all this when the Bribery Com­mis­sion’s circular to pub­lic ser­vants states that accepting ham­pers for Christ­mas is tan­ta­mount to accepting a bribe.

What was caus­ing a great deal of pub­lic anger is that the fu­ture of this coun­try and its 22 mil­lion peo­ple is be­ing de­ter­mined by just a hand­ful of po­lit­i­cal frogs who criss­cross the floor of the House for a mess of pot­tage.

Crossovers are noth­ing new in Sri Lanka’s Par­lia­ment. In 1964, the fa­mous ‘stab-in-the-back’ claim made by Sir­ima Ban­daranaike that brought her Govern­ment down was en­gi­neered by the then Op­po­si­tion. Since then scores have switched sides.

All this has been at the ex­pense of the fran­chise, which is one of the el­e­ments of the sovereignty of the peo­ple. The courts are re­plete with case law of MPs seek­ing re­dress from ex­pul­sions, largely due to crossovers. In Ameer Ali vs. the SLMC; Gamini Dis­sanayake vs. M. C. M. Kaleel; Ti­lak Karunaratne vs. Ban­daranaike, and many other cases, courts have gen­er­ally tried to strike a bal­ance be­tween shield­ing an MP from an un­law­ful ex­pul­sion by the party, al­low­ing him or her to keep the seat as an MP and/or be­ing ex­pelled against the rule of nat­u­ral jus­tice. They have been or­di­nar­ily en­ti­tled to re­lief at the ex­pense of the ‘iron fist’ of party dis­ci­pline.

Very rarely have the courts tested this with the rights of the voter whose fran­chise has been vi­o­lated or com­pro­mised by the cross­over (hav­ing voted for a party or can­di­date in the be­lief that he/she would sup­port the party that voter sup­ports). The pro­posed 20th Amend­ment to the Con­sti­tu­tion tabled by the JVP in­tends to cur­tail this ju­ris­dic­tion of the courts. The ar­gu­ment is that the Con­sti­tu­tion con­fers pri­macy to the po­lit­i­cal party as against the in­di­vid­ual MP. The party car­ries the man­date of the elec­tors and in turn, gives a man­date to the MP. Many Par­lia­men­tary democ­ra­cies like In­dia, South Africa, Kenya and Sin­ga­pore have in­tro­duced anti-de­fec­tion laws.

The sil­ver lin­ing in the on­go­ing drama had been that the move to make up the num­bers by lin­ing pock­ets and of­fer­ing perks to MPs had not shown the de­sired results. Ei­ther, nowa­days bribes can be matched by bribes, or this coun­try still has some prin­ci­pled MPs left. And so, what could not be done by bribery has been done by trick­ery. The Ex­ec­u­tive Pres­i­dent un­able to face the hu­mil­i­a­tion of go­ing be­fore Par­lia­ment and los­ing a floor vote next week, dis­solved it. A Govern­ment has for all in­tent and pur­pose been top­pled with­out the peo­ple’s vote. And the Pres­i­dent’s party will now go into an elec­tion, if held to be le­gal, with the state ap­pa­ra­tus en­tirely in that party’s com­mand and con­trol.

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