Economic opportunity cost of...
Asolution can be found to the current crisis if all parties concerned will adhere to the generally acceptable dispute resolution mechanism.
However, it is easier said than done, because this crisis situation has gone beyond redemption. In my view, it’s a futile exercise to determine the constitutionality or otherwise of the executive actions & powers and the parliamentary supremacy and its powers simply because there is no valid constitution to talk about.
The constitution has many inconsistencies and it’s bad in law. Now that at least one aspect is being challenged before Supreme Court, we should not interfere with the judiciary procedure- instead we await the outcome, however there is nothing to prevent discussing the legal, socio/political and economic aspects of the current crisis situation. It goes without saying that political stability is a necessary pre-requisite in attaining economic welfare of the people.
Two ideologies: two governments?
In my view, this is a clash between two distinctly separate ideologies recognized and preached by the two main political forces in this country thus trying to practice their own idealistic governance model.
The proponents of the neoliberal economic model coupled with western backed Westminster style parliamentary system of governance advocating nearfederal style of constitution are in the process of bringing more and more constitutional and economic reforms and those who oppose such moves are reliant on more socialistoriented market-based economic development model coupled with a strong presidential system of governance with little devolution of power to the periphery. I do not intend discussing this aspect in detail, however if we are to find a stopgap solution to the current impasse, it has to be acceptable and fair by both parties—in other words there shouldn’t be a situation where one party will lose and other will win. Instead, we will work towards maintaining the same status quo, till we go for a parliamentary election.
Ideally, we could have both the presidential and parliamentary elections on the same day, for which we need to wait till January 9, next year, and the incumbent president must make his proclamation indicating his intention to contest the next presidential election.
Economic opportunity cost of the national government
We preach that Sri Lanka is a Democratic Socialist Republic as per the 1978 constitution and practice social- market economy. Some experts say our country is faced with a huge ‘debt trap’ and the external account performance is fast deteriorating. Despite continuous borrowings, our foreign reserves are declining and debt servicing is ever increasing.
The trade deficit was US$ 9,619 million, however managed to finance through worker remittances and foreign exchange from tourism. According to the World Bank development reports, 45 percent of our population is below US $ 5 a day which is one of the generally accepted international criterion. As can be seen from the Household Income and Expenditure Survey (HIES) undertaken by Department of Census and Statistics, over 51 percent of the national income is enjoyed by the 20 percent of the higher income earning category (rich) of the people whereas, only 5 percent of the income is accrued to the 20 percent of the population(poor) in the lower income category. As per HIES (2016), the average monthly household income in the poorest 20 percent was Rs.14, 843 and richest 20 percent was Rs. 158,072.
The external debt as a percentage of GDP in 1977 was only 21 percent and now it’s 60 percent. FDIS are less than US$ 1,000 per annum. According to recent World Bank review, the economy is estimated to have grown by 3.6 percent in the first half of 2018, following a 16-year low growth of 3.3 percent in 2017. Agriculture and related industry sectors are expected to have recovered in the first half of 2018.
The real issue here is we have very low national savings, resulting a gap between investments and savings. We need to either create a conducive business environment to attract foreign investments or borrow money in order to make investments on infrastructure development projects including improvements in health and education.
These statistics are not sufficient to explain the real downturn. The bottom line is that the successive governments (not only under the national government) have failed in bringing social justice and much needed economic welfare to the people. Most of the top business leaders and financial analysts are of the view that the quality of life of not only poor, even the middle class is drastically reducing. The income inequality and social unrest are fast spreading across the regions, sub-districts and cities.
As for the failure of the national government, for it to work for the benefit of the people, there should be a common work programme. The failure in the present situation is due to the fact that the UNF had one programme dominated strongly by the Prime Minister Ranil Wickremesinghe (RW) and the UPFA had its own programme dominated only rather weakly by President Maithripala Sirisena (MS) who was not in Parliament. If there was a common programme agreed upon, this present crisis might not have taken place.
Parliamentary sessions back to normal?
According to media reports, the parliamentary sessions were held peacefully on Monday the 19th November in accordance with d standing orders. It was decided to appoint the business committee. The leader of the house, Minister Dinesh Gunawardena said ruling party should have the majority representation in the committee, which is not something unusual and it’s normal.
We look forward to the printing and publishing of the Hansard, and it can be assumed the official parliamentary document will carry the correct position mentioning Mahinda Rajapaksa (MR) as the Prime Minister and Ranil Wickremasinghe as a Member of Parliament from Colombo district.
Since the western diplomats and foreign NGOS and proponents of RW/UNP have been refusing to accept President’s authority and only accept what the Parliament says, someone can politely give them copies of the parliamentary proceedings contained in the Hansard which is the official parliamentary publication of the parliamentary sessions held on 19th.
Has the national government ceased?
Whether we like it or not, what we are witnessing now (till the Supreme Court judgement due on December 7) is a government of UPFA, and the previous national government formed on September 2, 2015 has ceased to operate with ‘pre-26/10/18’ Cabinet of ministers’ has discontinued to function w.e.f. 26/10/2018. This is because the UPFA Secretary General on 26th October, by a letter addressed to the Speaker has withdrawn its support from the national government. However, the President has opted not to reconstitute the cabinet which was above 30. It goes without saying that functioning of a cabinet exceeding 30 is unconstitutional. Instead, he has opted to remove the Prime Minister, RW in terms of the powers vested under 42(4).
In my view, the president should have the courtesy to request the leaders of the former government to form a new cabinet and allow the leader of that party to present the budget of the UPF government which has already been prepared, thus enabling him to have his UNF government.
The proponents of the UPFA have argued that the national government formed under Article 46(4) has ceased to exist soon after the MS’S UPFA has withdrawn its support to RW’S UPF. Unfortunately, in terms of the ruling given by the Speaker on the September 2, 2015 on the formation of the national government, the proponents of RW could still argue that this position is not correct and the national government has not collapsed even without one of the constituent parties. What about that Muslim Member of Parliament contested separately? Is there a provision available to form another national government?
19A should have made provisions in case a breakdown occurred
The 19A is initiated the hybrid governments. It is important to highlight that the 19A doesn’t have a provision to justify the continuation of the existing cabinet in the event one party withdraws support to the NG they formed, and consequently the composition of the next government.
They only talked about the formation of a national government and there is no provision at all to accommodate a scenario ‘what if it doesn’t work?’ It was a big experiment which should have made provisions in case there was a breakdown due to any reason whatsoever. This is a serious lapse on the part of 19A, which has really created chaotic situation leading to a scenario called ‘Reduction to Absurdity’.
This situation has prompted the incumbent president to invoke the powers vested in terms of the constitutional provisions. People’s sovereignty is exercised by the power of the executive president and this includes franchise as well (Article 3 and 4). The president has opted to act under Article 42(4) to issue two gazette notifications thus appointing MR as his PM. However, it should be admitted that his appointment of PM must be substantiated at a future parliamentary session, if they are to proceed with a stable government.
The proponents of RW argue that in terms of Article 46 (2), which deals with the tenure of the office of the Prime Minister, he cannot be removed and PM shall continue unless he himself resigns or ceases to be a member of parliament, which in my view, is correct if we take the relevant clauses in isolation. Then what would happen to the incumbent PM after defeating at a no-confidence motion in Parliament? Does it mean that he cannot be removed just because Article 46 specifically gives only two situations for PM losing his position? It is also true that the Article 48 as per the Sinhala version of the constitution was referring to a situation arising from the ‘removal of the prime minister’. Therefore, one cannot say that there is no provision to remove the incumbent prime minister after 19A. It is not the parliament that appoints the prime minister. It is the president’s discretion.
President’s power has reduced under 19A; the Article 42(4) still in force
The Parliament does not have a role (as the initial step) in deciding who the Prime Minister is. It is the President’s opinion what matters here as the initial step. If the President feels that RW is most likely to command the confidence in parliament, he can appoint RW as PM. Don’t forget that RW became his Prime Minister- three and half years back.
If the feelings change to such an extent that he is unable to have RW as his PM- three and half years later, then he should be able to look elsewhere for a new Prime Minister. That’s how he removed RW under Article 42(4) and appointed MR as his new PM. It is true that in order to establish that MR commands the majority in parliament, the new PM has to face a vote of noconfidence. This is the letter and spirit of Article 42(4). Quote; “…who, in the President’s opinion, is most likely to command the confidence in parliament” – not the majority in parliament.
The president is the appointing authority as well as the person who is authorised to remove the prime minister so appointed as per the Interpretation ordinance. Therefore, there is no need to specifically mention in the said article about the removal. This is subject to scrutiny by the judiciary; however no one has yet challenged the legality of the president’s act.
Contradictory clauses in 19A and move to dissolve Parliament
Since there is no clear- cut provision in the constitution to continue the government prevailed at the time of withdrawal of UPFA from the national government, the President has opted to use his unfettered power vested under 33(2) C of the 19A, which was introduced along with Article 70(1) restricting President’s power to dissolve within 4 1/2 years. I recalled Supreme Court determination in 2002 when a similar 19A was presented as a bill on a fundamental rights infringement case, it was determined that the duration of the president’s power to dissolve, which was originally only after the expiry of one year, should get extended only up to three years without reference to people at a referendum.
That prompted the law makers to bring in Article 33 (2) C giving power to the president to dissolve the Parliament in a situation like this, despite having the Article 70(1) which is a restrictive clause, thus preventing Supreme Court to determine calling for a referendum when they heard 19A this time in 2015. In short the Supreme Court has not requested them to go for a referendum to pass Article 70(1) as there is adequate power vested in the President under Article 33(2) C to dissolve the Parliament.
It is relevant to mention here that there are serious inconsistencies in the 19A in regard to the constitution of the Election Commission and some clauses in the Sinhala version differ from the Tamil and English versions etc. When perusing the constitution (vide Article 103), it is evident that the total number of members to the election commission has been reduced from five to three (03). As can be seen from the Article 104 (1), the quorum shall also be three numbers (03). What is more concerning is that the Article 104 (2) says that in the absence of the Chairman from any meeting of the Commission, a member elected by the members present from amongst themselves shall preside at such meeting. How can we have a commission consist of two (02) when the quorum is three (03)? These clauses are contradicting with each other. In view of the above, it is clear that the election commission is not properly constituted. In the circumstances, I would suggest the government in consultation with the other parties will consider amending the 19A and rectify anomalies.
Conclusion
Question whether neo-liberalism is a good thing or not can be answered by people differently. One could respond, yes, it’s good. Alternatively, he may ask. ‘What do you mean by good?’ and ‘Good for whom?’ Keynes once defined economics as the “science of thinking in terms of models joined to the art of choosing models which are relevant.” Ordinary people now question that the real problem is with the ‘art’ part.
One can therefore argue that the economic development cannot be achieved by means of technocratic economic policies; politics must play a central role.
The neo-liberal economic model coupled with western backed Westminster style parliamentary system of governance advocating federal style of constitution thus bringing more and more constitutional and economic reforms could dilute the ‘letter and spirit’ of the Article 1 and 2 of the constitution.
The Article 1 &2 state that Sri Lanka is a free, sovereign, independent and democratic socialist republic, which is a unitary State. Aren’t we playing only lip service to the Article 1 and 2? What is your choice?
The Supreme Court shall have the sole and exclusive jurisdiction to hear and determine the pending cases, however, it must be emphasized that it is prudent to have a caretaker government under president MS, having a stake both by MR and RW and go for a parliamentary election. Ideally, we could have both the Presidential and parliamentary elections on the same day. This could be presented as a temporary solution under a dispute resolution mechanism and cannot be construed as the end goal.
We as civil society members strongly believe that People of this country deserve a better system of governance so that our children can have a better & brighter future.
IDEALLY, WE COULD HAVE BOTH THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS ON THE SAME DAY, FOR WHICH WE NEED TO WAIT TILL JANUARY 9, NEXT YEAR
IN MY VIEW, THE PRESIDENT SHOULD HAVE THE COURTESY TO REQUEST THE LEADERS OF THE FORMER GOVERNMENT TO FORM A NEW CABINET AND ALLOW THE LEADER OF THAT PARTY TO PRESENT THE BUDGET OF THE UPF GOVERNMENT WHICH HAS ALREADY BEEN PREPARED
ACCORDING TO RECENT WORLD BANK REVIEW, THE ECONOMY IS ESTIMATED TO HAVE GROWN BY 3.6 PERCENT IN THE FIRST HALF OF 2018
THE SUPREME COURT SHALL HAVE THE SOLE AND EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE THE PENDING CASES
ACCORDING TO A RECENT WORLD BANK REVIEW, THE ECONOMY IS ESTIMATED TO HAVE GROWN BY 3.6 PERCENT IN THE FIRST HALF OF 2018
THE PROPONENTS OF RW ARGUE THAT IN TERMS OF ARTICLE 46 (2), WHICH DEALS WITH THE TENURE OF THE OFFICE OF THE PRIME MINISTER, HE CANNOT BE REMOVED AND PM SHALL CONTINUE UNLESS HE HIMSELF RESIGNS OR CEASES TO BE A MEMBER OF PARLIAMENT, WHICH IN MY VIEW, IS CORRECT IF WE TAKE THE RELEVANT CLAUSES IN ISOLATION