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’
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