Mr. Pres­i­dent, sorry to say, but no one is above the law

Sirisena pro­claims ‘I did what I did for it was the right thing to do for the sake of Lanka’s sta­bil­ity’

Sunday Times (Sri Lanka) - - COMMENT -

For five short weeks for­mer Pres­i­dent Mahinda Ra­japaksa had flown high as the Sirisena ap­pointed prime min­is­te­rial bird but had his wings clipped this Mon­day and was forced to crash down when he got a drub­bing from the Court of Ap­peal when it is­sued a stay or­der sus­pend­ing him act­ing in that ca­pac­ity till De­cem­ber 12 when the mat­ter will be taken up for ar­gu­ment. It not only ap­plied to him but to all mem­bers of the Sirisena cab­i­net af­ter Fri­day Oc­to­ber 26.

If it was one past­ing for Ra­japaksa, which left him grounded, it was a dou­ble blow for Sirisena who had ap­pointed him as prime min­is­ter. Three weeks ago, on Novem­ber 13, the Supreme Court had dis­placed his best laid plans and is­sued a sim­i­lar stay or­der pre­vent­ing his gazetted procla­ma­tion dis­solv­ing par­lia­ment from tak­ing ef­fect.

Af­ter hear­ing sub­mis­sion made dur­ing a marathon slog of four days, the seven-judge Supreme Court bench is ex­pected to de­liver its judg­ment in the com­ing week. No doubt, it will not be one based only on con­sti­tu­tional law alone but one steeped in jus­tice, too.

Whilst Ra­japaksa opted to ap­peal to the Supreme Court against the tem­po­rary stay or­der is­sued against him from func­tion­ing as prime min­is­ter, Sirisena chose to be­come his own su­pe­rior court, the Apollo in his own Or­a­cle of Del­phi em­pow­ered to pre­dict fu­ture events and ar­ro­gated to him­self the right to pass judg­ment on his own acts as if it were his di­vine right to do so. He held that he was right in tak­ing all the de­ci­sions he had taken since Oc­to­ber 26 and fur­ther held that ‘he did what he did in the best in­ter­est of the na­tion.’

This Tues­day, at the Sri Lanka Free­dom Party An­nual Con­ven­tion held at the Su­gath­adasa Sta­dium in Colombo, he gave a litany of jus­ti­fi­ca­tions for his ac­tions that had served to make the chaos only more chaotic.

First the Pres­i­dent said: “This po­lit­i­cal cri­sis may some­times be a novel ex­pe­ri­ence to our coun­try af­ter 1948, but it is no longer a novel phe­nom­e­non for the rest of the coun­tries in the world. Ger­many did not have a gov­ern­ment for over six months as Chan­cel­lor An­gela Merkel did not have the re­quired ma­jor­ity. Italy did not have a gov­ern­ment for over five weeks af­ter a Gen­eral Elec­tion. Aus­tralian Prime Min­is­ter Mal­colm Turn­bull was re­moved all of a sud­den.”

Does it mean that merely be­cause a po­lit­i­cal cri­sis may be a com­mon thing in other coun­tries that we should join the crowd, be with it and fol­low suit? Whilst the good that the western na­tions have to of­fer is often viewed through dark glasses by lo­cal na­tion­al­ists as things to be shunned as for­eign to our cul­ture and against the na­tional in­ter­est, the specks read­ily come off to look west and em­brace the bad and use it as ex­am­ples to be aped purely to jus­tify their own fol­lies? An­gela Merkel’s coali­tion fell apart when, soon af­ter the elec­tion, one of her main part­ners, Ger­many’s So­cial Demo­cratic Party (SDP), pulled out but re­joined later to form a grand coali­tion with Merkel’s Chris­tian Demo­cratic Party. Merkel still re­mained Chan­cel­lor of Ger­many, which is equiv­a­lent to the post of prime min­is­ter, and Ger­many had a gov­ern­ment and a cab­i­net through­out the un­cer­tain chap­ter. It was the same in Italy. Af­ter the gen­eral elec­tion this year, Ital­ian vot­ers failed to grant a clear ma­jor­ity to one party, re­sult­ing in a hung Par­lia­ment which lasted for ap­prox­i­mately two months. And as for Aus­tralia’s Mal­colm Turn­bull, he wasn’t ‘re­moved all of a sud­den’. He re­signed when there was a lead­er­ship spill in his party.

None of these in­stances can be com­pared to the present Lankan im­passe pre­cip­i­tated by a pre­med­i­tated ex­ec­u­tive ac­tion which plunged the na­tion need­less from or­der to chaos and set in mo­tion a train of events which the Pres­i­dent naively and blithely holds as the new ‘nov­elty’ in town.

Sec­ond, re­fer­ring to the vi­o­lent be­hav­iour, of his new found friends in Ra­japaksa’s Po­hot­tuwa party in Par­lia­ment on Novem­ber 16, which he did not con­demn then but chose in­stead to praise on their com­po­sure on Mon­day, which prob­a­bly, only lasted be­cause par­lia­ment was ad­journed within ten min­utes of it be­ing called to or­der by the deputy speaker, the Pres­i­dent said: “Sim­i­lar clashes in par­lia­ments are re­ported from many coun­tries and it is not a new phe­nom­e­non. He said the is­sue should be ad­dressed not phys­i­cally but ide­o­log­i­cally.” Hold on. Apart from Pres­i­dent Sirisena’s con­stant re­frain that such loutish be­hav­iour hap­pens in cer­tain Par­lia­ments abroad and, there­fore, the in­trin­sic in­sin­u­a­tion that there is no cause for alarm, what on earth can he pos­si­bly mean when he says that the vi­o­lence in Par­lia­ment -- the chair smash­ing, the chair throw­ing, ob­struc­tion to the po­lice to carry out their du­ties, the chilli throw­ing, the bi­ble bash­ing, the dam­age to elec­tronic equip­ment and the ul­ti­mate con­tempt done to the majesty of par­lia­ment in usurp­ing the Speaker’s chair and pre­vent­ing the Speaker his right­ful seat and the sub­se­quent car­ry­ing it away from the cham­ber -- all cap­tured graph­i­cally on cam­era -- must be dealt not phys­i­cally but ide­o­log­i­cally?

The laws of defama­tion fall silent in that au­gust cham­ber of Par­lia­ment. Any mem­ber, pro­tected by the cover of ab­so­lute par­lia­men­tary priv­i­lege, can cow­ardly heap slan­der af­ter slan­der on an­other to his heart’s con­tent and rob him of his char­ac­ter with im­punity know­ing full well that he can fire at will whilst the vic­tim out­side Par­lia­ment on whom the bul­lets fall has no re­course to the courts, has no right to an­swer back lest he be charged with con- tempt of par­lia­ment but forced to suf­fer in si­lence the im­mense dam­age done to his char­ac­ter. An ex­am­ple of this is when the then Fi­nance Min­is­ter of the J. R. Jayewar­dene gov­ern­ment Ron­nie de Mel dur­ing his bud­get speech in 1987, spouted his venom against a cer­tain in­de­pen­dent news­pa­per pub­lisher and, de­scrib­ing him and his fam­ily as ver­min, called for his ex­ter­mi­na­tion from the face of this earth. The vic­tim could only grin and bear this calumny with no right of re­ply.

But whilst Par­lia­ment thus can be turned into a soap box at Hyde Park in Lon­don, Eng­land where any­thing said thereat is also granted by tra­di­tion ab­so­lute im­mu­nity by the law lords down the Strand, the crim­i­nal laws of this land are not ren­dered mute and do not de­pend on pres­i­den­tial dis­cre­tion for its ex­e­cu­tion.

But Sirisena seems to think oth­er­wise when he says that what hap­pened in Par­lia­ment on that vi­o­lent Fri­day of Novem­ber 16 has to be ad­dressed’ ide­o­log­i­cally’ -- what­ever that means -- in what is be­ing in­creas­ingly re­ferred to as his own brand of pres­i­den­tial dou­ble speak. Would he have said the same of thugs brawl­ing on a Kup­piyawatte street cor­ner? That the is­sue must be ad­dressed not phys­i­cally but ide­o­log­i­cally? And which makes one won­der whether this is the same com­mon can­di­date who ex­pressly swore on ev­ery po­lit­i­cal plat­form be­fore the Jan­uary 2015 pres­i­den­tial poll, whistling as he did his sig­na­ture tune to end the Ra­japaksa era of se­lec­tive law en­force­ment where the cronies were spared and the rest mer­ci­lessly per­se­cuted?

Third, in de­fence of the ‘ Ya­ha­palanaya’ he had promised usher, the Pres­i­dent said: “The for­mer Prime Min­is­ter, Ranil Wick­remesinghe, mur­dered the good gov­er­nance con­cept and I stood by pa­tiently for over three years.”

The ques­tion is why he looked askance if that was in­deed the case? Why he wal­lowed in pa­thetic ap­a­thy whilst his chief lieu­tenant queered the pitch?

Dur­ing these last four years that he had held pres­i­den­tial of­fice, didn’t Sirisena re­alise that though one can del­e­gate re­spon­si­bil­ity to a sub­or­di­nate prime min­is­ter to tackle day- to- day is­sues, that the buck -- as a for­mer Amer­i­can Pres­i­dent Harry Tru­man said and kept a sign stat­ing the same on his Oval Of­fice ta­ble -- stops at the ex­ec­u­tive pres­i­dent’s desk. Did 6.2 mil­lion peo­ple of this coun­try elect Sirisena as the ex­ec­u­tive pres­i­dent for him to pass the buck to some­one else and then claim the credit when the sun shone and ab­solve him­self of all re­spon­si­bil­ity and blame an­other when it rained? Has he not heard that a ship’s cap­tain is the last to leave his sink­ing ves­sel; and, if nec­es­sary, goes down with the ship?

Fourth, the Pres­i­dent con­tin­ued with his tirade against the man who had brought him to power in 2015 with his UNP vote bank. He said: “I have no per­sonal is­sues with him, but he is a politi­cian who does not suit the coun­try. His vi­sion and the way of think­ing do not suit this coun­try. He lacks a sense of pa­tri­o­tism, na­tional iden­tity and re­spect for cul­tural val­ues and ethos. The peo­ple in the North have been taken for a ride by Wick­remesinghe. He hes­i­tates to solve is­sues of the peo­ple in the North­ern Prov­ince. Ranil Wick­remesinghe de­stroyed the no­ble prin­ci­ples of good gov­er­nance, the grand old party -- the UNP, too. He

de­stroyed me as well to some ex­tent.” The Pres­i­dent then added, in an­other glar­ing in­stance of pass­ing in­fal­li­ble judg­ment on his own ac­tions -- mat­ters presently be­fore the Ap­peal Court and the Supreme Court that his de­ci­sion on Oc­to­ber 26 to sack Wick­remesinghe was cor­rect.

But such was the de­gree of pres­i­den­tial ire that he nailed Ranil on the cross of per­sonal hate when he said: “Even if all the 225 mem­bers of Par­lia­ment were to sign let­ters ask­ing me to ap­point Ranil Wick­remesinghe as Prime Min­is­ter, I will still not ap­point him”.

Funny he should say that. For 225 mem­bers of par­lia­ment also in­cludes his new best friend Mahinda Ra­japaksa who he be­trayed four years be­fore and ap­pointed as his prime min­is­ter six weeks ago. It also re­veals Sirisena’s to­tal mis­read­ing of the con­sti­tu­tional ar­ti­cle on the pres­i­dent’s power to ap­point a prime min­is­ter. It’s not an ab­so­lute power. It’s only a dis­cre­tionary one.

Ar­ti­cle 42(4) states: ‘The Pres­i­dent shall ap­point as Prime Min­is­ter the Mem­ber of par­lia­ment who, in the Pres­i­dent’s opin­ion is most likely to com­mand the con­fi­dence of Par­lia­ment.”

The oper­a­tive phrase is ‘com­mand the con­fi­dence of Par­lia­ment.” Not com­mand the con­fi­dence of the pres­i­dent.

In the event of an un­cer­tainty as to the Mem­ber of par­lia­ment who is most likely to com­mand the con­fi­dence of Par­lia­ment, the Pres­i­dent is en­ti­tled, un­der this Ar­ti­cle, to use his dis­cre­tion, right or wrongly, to ap­point the one the Pres­i­dent thinks is most likely to com­mand Par­lia­ment’s con­fi­dence. To choose be­tween X or Y.

But if Par­lia­ment, in its to­tal choir of 225 were to sing in one uni­fied har­mo­nious voice the hosan­nas of one Mem­ber as the cho­sen one who com­manded their con­fi­dence, the Pres­i­dent’s dis­cre­tionary power stands negated and he must sur­ren­der his dis­cre­tionary opin­ion to that im­pe­rial com­bined com­mand of Par­lia­ment.

It’s the fail­ure to re­alise the am­bit of his con­sti­tu­tional pow­ers that has landed Sirisena in the mess he is in. His fail­ure to re­alise that even 113 MPs in Par­lia­ment ex­press­ing their de­mand for one MP to be the Prime Min­is­ter will do to rob him of his dis­cre­tion to ap­point one of his choice. Pity.

Fifthly, the Pres­i­dent stated -- to the dwin­dling crowd of his SLFP sup­port­ers at the an­nual con­ven­tion on Tues­day, many who have de­serted the party in droves, in­clud­ing Mahinda Ra­japaksa who left the day af­ter he was ap­pointed by Sirisena as Prime Min­is­ter to Peiris’ Po­hot­tuwa to as­sume com­mand of it -- the most ex­traor­di­nary thing of all. He de­clared that he had done what he did for the sake of the na­tion’s sta­bil­ity.

With all re­spects, it wasn’t up to him to de­clare that he had done the right thing when two cases one be­fore the Supreme Court and an­other be­fore the Ap­peal Court against his de­ci­sions lie pend­ing ju­di­cial judg­ments.

No one ques­tions his mo­tives. He may in­deed done so not out of any self­ish po­lit­i­cal rea­son but out of a gen­uine love of coun­try, but what­ever in­ten­tion he may have har­boured in his breast and known only to him, how­ever great and ad­mirable his pa­tri­otic in­ten­tions may have mo­ti­vated him to rush to rash­ness, the fact re­mains, does it not, that ex­ec­u­tive de­ci­sion and pres­i­den­tial procla­ma­tions must only be done and can only be made within the frame­work of the con­sti­tu­tion?

Not in the man­ner of some tin pot despot who be­lieves his pa­tri­otic fer­vour jus­ti­fies him to tran­scend the con­sti­tu­tion and be a law unto him­self ? The con­sti­tu­tion does not grant his om­nipo­tence to do as he will nor om­ni­science to de­cide what will be for the ben­e­fit of Lanka in the fu­ture. Nei­ther does it be­stow on him some pa­pal in­fal­li­bil­ity of judg­ment.

Sixthly, the Pres­i­dent stated: “The peo­ple in the coun­try have dif­fer­ent opin­ions over the ju­di­ciary in the coun­try over these po­lit­i­cal cases. One group of peo­ple say that the ju­di­ciary is very im­par­tial and in­de­pen­dent. An­other group of peo­ple say it is not so. There is a dif­fer­ence of opin­ion among var­i­ous groups of peo­ple,”

True. Ex­actly. That’s what courts are for. To give judg­ment in ac­cor­dance with the law tem­pered with jus­tice. And it’s not lim­ited to po­lit­i­cal cases only but to ev­ery sin­gle case filed in court. Be it petty theft or mega cor­rup­tion, be it a land mat­ter over a boundary fence, be it divorce or breach of prom­ise, be it a con­sti­tu­tional cri­sis where the na­tion is plunged into chaos the win­ner will praise the Judge’s judg­ment, whilst the loser will blame the judge’s bias. But one soli­tary flicker of light that briefly shone on Sirisena’s face on Tues­day is when he said “I al­ways have re­spect to­wards the ju­di­ciary and I will ac­cept the de­ci­sions taken by the court al­ways.” At least he knows that no one is above the law, in­clud­ing him­self. The ques­tion is : has he any other choice?

Seventhly, the Pres­i­dent of­fered a ray of hope when he stated: “I as­sure the na­tion that the cur­rent po­lit­i­cal in­sta­bil­ity will be re­solved in a week.” Not bad, not bad at all as a sign of hope for those who still be­lieve in fairy tales to en­ter­tain the be­lief and be op­ti­mistic in view that all’s well that ends well. That Sirisena has the magic wand to wipe away the bil­lions of ru­pees his folly in­curred which the pub­lic will soon have to bear. For the dam­age caused to the so­cial fab­ric. For the di­vi­sions it cre­ated. For the in­ter­na­tional ig­nominy it brought to the na­tion. There’s a price for ev­ery­thing. And it has to be paid. And a peo­ple’s dis­il­lu­sion­ment with the on­go­ing scheme of things will be more stark in the com­ing days of their de­spair. Es­pe­cially when the sins of their lead­ers visit them not in sin­gle file at a stretch but en masse in a flash flood.

On the muf­fled tongue of a na­tion’s peo­ple tolls the bell for those who wrought this tragedy and on the karmic clock, though they may not fathom it yet, it is sun­set. And the Del­phic in­scrip­tion ‘know thy­self ’ will hold true and the peo­ple will abide their time.

Did 6.2 mil­lion peo­ple of this coun­try elect Sirisena as the ex­ec­u­tive pres­i­dent for him to pass the buck to some­one else and then claim the credit when the sun shone and ab­solve him­self of all re­spon­si­bil­ity and blame an­other when it rained? Has he not heard that a ship’s cap­tain is the last to leave his sink­ing ves­sel; and, if nec­es­sary, goes down with the ship?

PRES­I­DENT SIRISENA IN CON­TEM­PLA­TIVE MOOD: ‘Ranil mur­dered good gov­er­nance while I just watched for these last three years’ Pic by Nis­sanka Mee­goda

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