From the frying pan into the fire
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.