Who will tri­umph this Game of Thrones?

With his au­da­cious gam­bit fail­ing, Pres­i­dent seeks last re­course in dis­solv­ing the House with none know­ing what the end will hold

Sunday Times (Sri Lanka) - - COMMENT - By Don Manu


Dark­ness has set­tled upon the land. And this time, per­haps, to re­side on a more per­ma­nent foot­ing. In this sun­less hour when rea­son has fled to brutish beasts and the con­sti­tu­tion has been stabbed in the back, the na­tion stands at the cross­roads lead­er­less, hope­less and god­less; and, with light de­nied, does not know which course to take, whose dic­tate to fol­low, whose word to be­lieve. Only an over­pow­er­ing sense of be­trayal en­gulfs the na­tion’s soul, be­trayal beyond be­lief, be­trayal of the worst kind; and leaves it baf­fled. The still un­fath­omable sense of be­trayal per­plexes all: of how one man could sell the peo­ple’s sov­er­eign right overnight down the river for his own per­sonal ben­e­fit and still have the gump­tion to claim it was a law­ful act and that it was done in the na­tion’s best in­ter­est.

The whole thing sucks. And that is to put it mildly.

Con­sti­tu­tional coups are nor­mally done by out­siders. This was an in­side job. Done by the Pres­i­dent him­self. Like a Jack in the Box that pops out to scream ‘sur­prise, sur­prise’ he astonished the na­tion when he an­nounced two Fri­day nights ago that he had jumped into bed with his sworn foe Mahinda Ra­japaksa and sworn him as the new prime min­is­ter whilst the in­cum­bent Prime Min­is­ter Ranil Wick­remesinghe still held court at Tem­ple Trees.

No one re­ally knows what made Sirisena creep un­der the same blan­ket with Ra­japaksa and think he could sur­vive the night. Es­pe­cially when, not even two years ago, he had this to say of Ra­japaksa at a pub­lic rally:

“Th­ese are the peo­ple who de­stroyed the coun­try, the peo­ple who de­stroyed democ­racy in the coun­try, the peo­ple who gave birth to a white van cul­ture in this coun­try to in­stil fear into the peo­ple, th­ese are the peo­ple who, whilst the coun­try was in debt to the tune of 9,000 mil­lion ru­pees, was rob­bing the na­tion of bil­lions and bil­lions, th­ese are the peo­ple who prac­tised fraud and cor­rup­tion on a scale un­prece­dented in this coun­try’s his­tory and who crowned fraud and cor­rup­tion – I clearly state that we shall never al­low them to form a govern­ment in this coun­try again.”

And then Sirisena goes on: “Now it is said that they are try­ing to form a new party. Let’s see them do­ing it. I tell them that, even as I re­vealed last year be­fore the Jan­uary 8th elec­tion the fraud and cor­rup­tion and abuse of power and the un­civilised state of the na­tion, I tell them now that if they dare to form a new party then, on that day they do so, I shall re­veal even greater se­crets I have not re­vealed up to now and ex­pose them and cre­ate an en­vi­ron­ment in which they, in­stead of rul­ing the coun­try again, they will be forced to spend their time walk­ing the streets.”

Two years later, jump­ing from the UNP jug­ger­naut that gave him a free ride to the pres­i­dency and throw­ing his own cargo of gratitude over­board in the process, he re­turns, like a hom­ing pi­geon, to roost amongst the very flock he once de­nounced as vul­tures of the worst kind to ever stalk the land.

Of course, it was noth­ing new. It had been his sig­na­ture tune, ever since he be­trayed Mahinda and jumped onto the UNP float that car­ried him to the Pres­i­dency. Mahinda had of­ten men­tioned how Sirisena had be­trayed him over a hop­per din­ner, and thus turned the hum­ble hop­per into an iconic sym­bol of be­trayal.

But while that could be ex­cused as some­thing more per­sonal be­tween MR and MS what hap­pened on Oc­to­ber 26th night was more a na­tional be­trayal of the trust the peo­ple had re­posed in him. It was un­be­liev­able, un­think­able and un­for­giv­able. It seems be­trayal had be­come sec­ond na­ture to him, the sec­ond skin Sirisena wears un­der his epi­der­mis.

As a re­sult the coun­try is not blessed twice but dou­bly cursed with two prime min­is­ters, two cab­i­nets and a twotongued pres­i­dent whose morn­ing ster­ling ut­ter­ances be­come coun­ter­feit coin at sun­set. And, if that was not enough for one bite, ap­par­ently, there are two con­sti­tu­tions, too. One in English. And the other in Sin­hala.

Ac­cord­ing to G.L. Peiris, it all boils down to one word, con­tained in the Sin­hala ver­sion but miss­ing in the English trans­la­tion. The word is ‘re­moval’. In a state­ment is­sued on Oc­to­ber 29, he stated: “Con­tin­u­ing dis­cus­sion of the le­gal is­sues is taking place on the ba­sis of a fun­da­men­tal mis­con­cep­tion. It has been as­sumed that there is no pro­vi­sion in the Con­sti­tu­tion of Sri Lanka, em­pow­er­ing the Pres­i­dent to re­move the Prime Min­is­ter.

“This is en­tirely in­cor­rect. Sec­tion 48(i), which is part of the 19th Amend­ment, ex­plic­itly refers to re­moval or dis­missal as one of the meth­ods by which the Prime Min­is­ter ceases to hold of­fice.”

“The Con­sti­tu­tion, there­fore, in ex­press terms recog­nises re­moval or dis­missal by the Pres­i­dent as a mode of end­ing the ten­ure of of­fice of the Prime Min­is­ter. This vi­tal pro­vi­sion has es­caped no­tice in the cur­rent dis­cus­sion, be­cause it is not re­flected in the English ver­sion.

“There is a cru­cial dif­fer­ence be­tween the Sin­hala and English ver­sions. The English ver­sion uses the words: ‘On the Prime Min­is­ter ceas­ing to hold of­fice by death, res­ig­na­tion or other­wise’. The ref­er­ence to re­moval or dis­missal is deleted.”

“I was a mem­ber of Par­lia­ment when the 19th Amend­ment was dis­cussed and en­acted by Par­lia­ment. This hap­pened dur­ing the so-called 100 day pe­riod be­tween the Pres­i­den­tial Elec­tion of 8 Jan­uary 2015 and the Par­lia­men­tary Elec­tion of 17 Au­gust 2015.

“In any event, in the event of any discrepancy, it is the Sin­hala ver­sion that pre­vails. Indis­putably, the Sin­hala ver­sion is the au­thor­i­ta­tive ver­sion of the law.

“When the gov­ern­ing pro­vi­sions of the Con­sti­tu­tion are ac­cu­rately stated in their com­plete form, and taken into ac­count, there can be no con­ceiv­able doubt that the Pres­i­dent’s power to dis­miss the Prime Min­is­ter is ex­pressly con­tem­plated by the Con­sti­tu­tion.

“Dis­missal of Mr. Ranil Wick­remesinghe and ap­point­ment of Mr. Mahinda Ra­japaksa as Prime Min­is­ter on Oc­to­ber 26, 2018, is, there­fore, en­tirely in keeping with the Con­sti­tu­tion, and there has been no in­fringe­ment of its pro­vi­sions in any re­spect.”

Once upon a time, G. L. Peiris’s le­gal opin­ions were re­spected as the last word on the law but now, coloured as they are by po­lit­i­cal prej­u­dice, it is widely open to crit­i­cism and doubt. Even sub­ject to scep­ti­cism and ridicule con­sid­er­ing the way he des­per­ately labours to jus­tify the ways of his Lord and Master to lay­men in the be­lief that in a land of ig­no­ra­muses his sup­posed le­gal opin­ion will dazzle the blind and hold sway. Sad to say, no more! The pro­fes­sor has lost his pres­tige and he is no more than a com­mon hus­tler striv­ing to whip up sup­port by some pseudo le­gal ar­gu­ment of his own and declar­ing it as if it was the pro­nounce­ment of the Supreme Court of Jus­tice. It’s time to call his bluff. Re­veal him for the shys­ter he is. For what does the two texts state: The English ver­sion holds: Ac­cord­ing to Ar­ti­cle 46 (2) that the Prime Min­is­ter shall con­tinue to hold of­fice un­less he re­signs or ceases to be a mem­ber of Par­lia­ment. The Sin­hala ver­sion in­cludes the word ‘re­moval’ from of­fice. And it’s on this one word ‘re­moval’ that Peiris rests his case upon or the pres­i­dent’s right to dis­miss the prime min­is­ter at his whim and plea­sure and quib­bles upon with­out scant re­gard to the fact that the per­ti­nent pas­sage does not men­tion ‘re­mov­able by whom. Whether it is ‘re­mov­able’ by the pres­i­dent or whether it is ‘re­mov­able’ by a no-con­fi­dence mo­tion brought against the sit­ting premier in Par­lia­ment or even whether it’s by the mor­tal hands of fate. Such seems to be the paucity of Peiris’s le­gal ar­gu­ment that he clutches at his straw with­out re­gard to the source.

A pro­fes­sor, Peiris may be but he can­not usurp the ju­ris­dic­tion of the Supreme Court and pass judg­ment on the mat­ter as one of no fur­ther ap­peal.

Sirisena could have re­quested the Supreme Court for an opin­ion on the mat­ter as he is en­ti­tled to do as pres­i­dent. But he did not do so. In­stead he re­lied on the likes of Peiris and other le­gal hang­ers on ea­ger to serve their dish of opin­ion to serve his po­lit­i­cal taste.

An­other ar­gu­ment put forth is that the pres­i­dent has the right to dis­solve the en­tire cabi­net and upon do­ing so, Prime Min­is­ter Ranil Wick­remesinghe ceases to ex­ist in the equa­tion and the pres­i­dent is free to name one anew. This is based on the hy­poth­e­sis that upon UPFA pulling out of the coali­tion govern­ment the le­gal

al­lowance of hav­ing 45-min­is­ters comes to an end and a new govern­ment of only 30 cabi­net min­is­ters has to be con­sti­tuted.

In this in­stance, two as­pects need to be con­sid­ered. The first is the makeup of the ‘coali­tion’ or ‘na­tional govern­ment. Ac­cord­ing to Ar­ti­cle 46(5), a na­tional govern­ment means a Govern­ment ‘formed by the recog­nised po­lit­i­cal party or in­de­pen­dent group which ob­tains the high­est num­ber of seats in Par­lia­ment to­gether with the other recog­nised po­lit­i­cal par­ties or in­de­pen­dent groups’.

At the Au­gust 17, 2015 gen­eral elec­tions, the UNP gained the high­est num­ber of seats in Par­lia­ment and true to its word of gov­ern­ing by con­sen­sus to meet the needs of the hour, formed a coali­tion with Sirisena’s UPFA and with a soli­tary mem­ber of the SLMC. Th­ese three formed the na­tional govern­ment with the UNP-led UNF as its core with UPFA and the SLMC lone wolf be­ing the hang­ers on. The UPFA con­tention is that by pulling out of the na­tional govern­ment, the cabi­net stands dis­solved. But is that so? Merely be­cause one party pulls out does it mean that the na­tional govern­ment comes to an end? If so did the sta­bil­ity of the na­tional govern­ment rest upon the soli­tary SLMC mem­ber, who was a co-part­ner in the na­tional govern­ment? Had he pulled out would the grand coali­tion come to an end and a con­sti­tu­tional cri­sis erupted?

That is a mat­ter that lies in the exclusive province of the Supreme Court to ad­ju­di­cate in the na­tional in­ter­est, not for a po­lit­i­cally par­ti­san Peiris to ar­bi­trate in his party’s favour and put for­ward his prej­u­diced jaun­dice as the opin­ion of the apex fount of law and jus­tice.

The sec­ond as­pect is the con­tention that, as a re­sult of all this bal­ly­hoo, it gives rise to the right for the pres­i­dent to con­sider the ex­ist­ing cabi­net as dis­solved; and the right to ap­point a new cabi­net with a new prime min­is­ter of his choice.

If that was in­deed the case, let’s drag, for laughs at least, the im­port of it to its log­i­cal, though lu­di­crous, con­sti­tu­tional con­clu­sion.

Un­der Ar­ti­cle 42(3) of the 19th Amend­ment to the Con­sti­tu­tion, ‘the Pres­i­dent shall be a mem­ber of the Cabi­net of Min­is­ters and shall be the Head of the Cabi­net of Min­is­ters.’ So does that mean that when the cabi­net is dis­solved the pres­i­dency too stands dis­solved? Nay, for the pres­i­dent is a stand­alone fig­ure, even as the prime min­is­ter is a stand-alone fig­ure. Like the pres­i­dent, the prime min­is­ter, un­der the 19th Amend­ment is a stand-alone fig­ure and though he maybe, like the pres­i­dent, a mem­ber of the cabi­net does not dis­solve unto the dust merely be­cause the cabi­net stands dis­solved.

That is why spe­cial place of promi­nence is granted to him in the con­sti­tu­tion. That is why un­der Ar­ti­cle 43(2) of the 19th Amend­ment to the Con­sti­tu­tion, the pres­i­dent shall only ap­point mem­bers to the cabi­net on the prime min­is­ter’s ad­vice. That is why the prime min­is­ter is sworn in first be­fore the rest of the gang, the dis­pens­able. That is why, though the crew may be sac­ri­ficed and thrown to drown at sea, the cap­tain and his first mate must re­main on deck to sal- vage the ship of state and steer it safe home to port.

But all th­ese are mat­ters for the Supreme Court to de­cide and pass judg­ment not for the lay to es­pouse ad nau­seam. Even as it’s a mat­ter for the Supreme Court to fi­nally de­cide whether the Pres­i­dent in­ten­tion­ally vi­o­lated the Con­sti­tu­tion when he ap­pointed Mahinda Ra­japaksa as prime min­is­ter when he did not pos­sess the power to strip the sit­ting Premier Ranil Wick­remesinghe from his con­sti­tu­tion­ally safe­guarded post.

This week the Pres­i­dent re­vealed that he had of­fered the post of prime min­is­ter to Karu Jaya­suriya, the present Speaker of the House, eight months ago and to the UNP’s Sa­jith Pre­madasa two months ago and that they had both de­clined the of­fer. And wisely so. For, they would have known that it was not within the Pres­i­dent’s purview to make such of­fer­ings, bound as he is by the con­sti­tu­tional belt.

His mad gam­ble to ex­or­cise Ranil Wick­remesinghe from his po­lit­i­cal sphere and co-habit power with his bet­ter known devil has come to a mis­er­able end. The gam­bit was doomed to fail and it stands failed. Whilst both he and Ra­japaksa be­lieved, they could first seize the fort and then muster the nec­es­sary num­bers to hold the ci­tadel, their best laid plans have gone awry and to­day they both must not only blush in shame but pay pen­i­tence and seek for­give­ness for the Lankan peo­ple for con­demn­ing this na­tion to worse ruin. For the num­bers never came. They have ex­pected the UNP flood­gates to open but there only came a trickle, the worst rats well known to leave ship at the first sign of leak.

First to hark the whis­tle blown by his for­mer master and scurry forth to his cruise liner was the se­rial grass hop­per Vas­an­tha Se­nanayake who trum­pets his D. S. Se­nanayake her­aldry when it suits him and latches onto the Ra­japaksa clan when the grass turns blue on the Mahinda turf when well wa­tered with enough rain and ma­nured with ex­cess com­post. Seven oth­ers fol­lowed suit, to be the nob­bled stal­lions in the Ra­japaksa sta­bles. But, alas, their be­trayal may turn out to be fruit­less.

For now as it ap­pears to be the new Maithree-Mahinda coali­tion sim­ply does not have the num­bers. As the score­board reads this Satur­day, UNP 98 plus TNA 14 plus JVP 6 to­talling 118 against Maithri’s tally of 105. That’s the lat­est score. But given the state of the pitch, it can turn and, as they say in cricket par­lance, the out­come can­not be pre­dicted till the last ball is bowled and the stumps are drawn.

But one goo­gly bowled that beat the Maithri-Mahinda wil­low and dis­lodged the bails to king­dom come, came from the TNA. Last Satur­day they rang the death knell at the Maithri-Mahinda door and an­nounced their de­par­ture upon their ar­rival by leav­ing a terse mes­sage on the door­mat. It read:

“Mr. Ra­japaksa’s ap­point­ment as the Prime Min­is­ter was un­con­sti­tu­tional and il­le­gal.

“Re­main­ing “neu­tral” in such a sit­u­a­tion, would pave the way for achiev­ing an un­demo­cratic end by force.

“Ac­cord­ing to the Con­sti­tu­tion of Sri Lanka, the Pres­i­dent does not pos­sess the author­ity to re­move a Prime Min­is­ter who is in of­fice.

“Such author­ity that vested in the Pres­i­dent pre­vi­ously was specif­i­cally re­pealed by the 19th Amend­ment to the Con­sti­tu­tion. In th­ese cir­cum­stances, the Gazette no­ti­fi­ca­tions declar­ing that the Prime Min­is­ter had been re­moved and an­other Prime Min­is­ter ap­pointed are un­con­sti­tu­tional and il­le­gal.”

The TNA mes­sage also said it con­sid­ers the Pres­i­dent’s de­ci­sion to pro­rogue Par­lia­ment as un­demo­cratic and in vi­o­la­tion of Par­lia­men­tary Supremacy.

“Af­ter hav­ing de­clared as Prime Min­is­ter a Mem­ber who does not com­mand the con­fi­dence of Par­lia­ment, this had been done in or­der to cre­ate de­lay and pre­vent such Mem­ber from hav­ing to prove a ma­jor­ity in Par­lia­ment. The TNA strongly con­demns and op­poses the un­demo­cratic ef­forts to use such de­lay to bribe MPs with both money and Min­is­te­rial posts to in­duce them to cross over in or­der to fraud­u­lently ob­tain a ma­jor­ity in Par­lia­ment. We strongly op­pose and con­demn TNA MP S. Viyal­en­dran be­ing a part of this con­spir­acy. Nec­es­sary ac­tion will be taken against him im­me­di­ately.”

The Tamil Na­tional Al­liance (TNA) said it will vote in sup­port of the No-Con­fi­dence Mo­tion to be brought against the Govern­ment headed by Mahinda Ra­japaksa.

True to their word the TNA stuck fast to their guns when they met Pres­i­dent Sirisena at his official Colombo 7 residence on Wed­nes­day. They re­it­er­ated their mes­sage and told the Pres­i­dent that their stand on the mat­ter could not be re­versed.

And with the JVP, too, stat­ing that they, too, will sup­port, a no-con­fi­dence mo­tion against Mahinda Ra­japaksa as Prime Min­is­ter, the last nail in Maithri-Maithri hopes of stag­ing a con­sti­tu­tional coup was driven home.

Ex­cept for one thing: Th­ese guys don’t give up eas­ily, do they, but will strive to the end to achieve their aims. It’s as if the con­sti­tu­tion does not ex­ist at all: and it’s a free for all.

Even though the pres­i­dent had de­clared only on Fri­day morn­ing that he had the 113 mag­i­cal num­ber and boasted to his UPFA gang that vic­tory was all sewed up in his bag with the scalps of crossovers and that he had many more trumps up his sleeve, on Fri­day mid­night the pres­i­den­tial weather cock turned again with the ever chang­ing wind to an­nounce that Par­lia­ment would be dis­solved at that mid­night hour. It was ev­i­dent the gam­ble had failed. The na­tion’s econ­omy had been im­per­iled, the peo­ple’s mind had been shat­tered, and the very pil­lars of democ­racy shaken to give sub­stance to a shad­owy pres­i­den­tial dream which upon wak­ing not even a scape­goat could be found to take re­spon­si­bil­ity for all the may­hem caused.

Two days ago, the for­mer Chief Jus­tice now turned chief mis­chief maker Sarath Silva was brought to the fore to give his shady opin­ion that it was le­git for the pres­i­dent to dis­solve Par­lia­ment. He quoted Ar­ti­cle 33(2) (C) of the 19th Amend­ment. This is found not in Ar­ti­cle 33 of the 19th Amend­ment but buried in Ar­ti­cle 5 which states that the Pres­i­dent shall have the right to “to summon, pro­rogue and dis­solve Par­lia­ment.”

Be that as it may, Sarath Silva whilst hold­ing it as the en­abling Ar­ti­cle con­ve­niently for his own and the pres­i­dent’s po­lit­i­cal pur­poses per­haps, down played the role of Ar­ti­cle 70 of the 19th Amend­ment which states that whilst the pres­i­dent can in­deed dis­solve Par­lia­ment, he can only do so af­ter four and a half years in of­fice; and that if he wishes to dis­solve it ear­lier he may only do so if Par­lia­ment passes a res­o­lu­tion to that ef­fect with a two thirds ma­jor­ity. But to­day we find the pres­i­dent has dis­solved par­lia­ment as per Sarath Silva’s ad­vice.

This time the hop­per has been served to the peo­ple. And some seem to have swal­lowed it whole.

PS: Even if Par­lia­ment had been re­con­vened on the 14th and even if Mahinda Ra­japaksa had been able to show 113 votes in his favour, would a sim­ple ma­jor­ity suf­ficed to have proved his le­git­i­macy if the orig­i­nal act of his ap­point­ment was in vi­o­la­tion of the con­sti­tu­tion or would it have re­quired a two third ma­jor­ity to remedy the de­fect?

Once upon a time, G. L. Peiris’s le­gal opin­ions were re­spected as the last word on the law but now, coloured as they are by po­lit­i­cal prej­u­dice, it is widely open to crit­i­cism and doubt. Even sub­ject to scep­ti­cism and ridicule con­sid­er­ing the way he des­per­ately labours to jus­tify the ways of his Lord and Master to lay­men in the be­lief that in a land of ig­no­ra­muses his sup­posed le­gal opin­ion will dazzle the blind and hold sway

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Maithri: Sur­prise turn

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