Harim Peiris

By Harim Peiris

(Published in the Island on 12^th December 2018)

As this article is being penned, the nation awaits the decision of the Supreme Court on the legal validity or lack thereof of the presidential gazette dissolving Parliament. With the traditional year end court vacations scheduled for December 14^th, many are expecting that Court would give its judgement before the vacation. However, Court is not bound to give its judgement before its vacation. Setting a date after vacations for its decision would in the interim period, again allow the political actors in the drama, the opportunities to work out their out of court settlement as it were and inform court that all parties have come to an agreement. Eminent counsel has made their arguments both against and for the dissolution and this article does not seek to rehash the legal arguments which have been published elsewhere but to explore the options for the three principal political actors in this drama, President Sirisena, Ranil Wickramasinghe and Mahinda Rajapakse. All three sides in this political drama are on record that they are awaiting the decision of the court, to decide their next course of action.

The concrete political change which took place in end October, was President Sirisena deciding to end his lately rather tortured relationship with his erstwhile political allies of the UNF and hitch his political bandwagon and future to the Mahinda Rajapakse political project. This decision, confirmed at party level when the UPFA formally chose to exit the government, did create a shift in political forces in the country. The complication of course was that the President’s advisors deemed it fit to seek to immediately translate a political change into a government change. Changing a democratically elected government in a civilized society and we are an ancient civilization, has to be done in accordance with the relevant constitutional provisions and the issue before the Supreme Court, is indeed whether this was the case.

In the scenario that the court holds that the dissolution of Parliament is invalid, or even prior to the Court’s decision, President Sirisena can explore a compromise, where he restores the status quo ante, or the UNF to Government, but with an undertaking for an earlier dissolution of Parliament with the consent of Parliament. It is clear from UNF circles that they are prepared to compromise but not on the core issue of a Ranil Wickramasinghe premiership, the thinking being that the office of Prime Minister, should be safeguarded within the context of the will of Parliament. i.e. the time-honored tradition and indeed legal principal that the head of state, appoints as Prime Minister a member of Parliament who commands the confidence of that august assembly.

The real political ambiguity which is creating the space for dissent from the President’s political initiatives or plenary prerogatives as the AG’s Department likes to call it, is that the marriage between the SLFP and the SLPP or between President Sirisena and all three Rajapakse brothers has not been cemented and is not ironclad. It is neither concrete tactically nor in terms of shared political interest between Sirisena and the three Rajapakse brothers. Political insiders, minority party leaders, civil society and even government officials see and recognize this ambiguity. This is the political problem which President Sirisena has to address to ensure that his political switch of end October is at least concretized for the immediate future.

The slightly more medium-term challenges which Sirisena and Rajapakse face as they seek to work together with each other are also complex. Technically in the event that the Court holds the President can sack governments at will, then there is always the possibility that he can always also sack a Mahinda Rajapakse Government in the future as well and insist that the SLPP appoints someone else he prefers from that Party, like the current initiatives to get the UNP to nominate another Prime Minister, other than its long serving leader. There is also the JVP which is raising the issue of impeachment of the President for alleged violation of the constitution. The issue is not just legal. After all we had Chief Justice Shirani Bandaranaike booted out the Supreme Court under Rajapakse. A Mahinda Rajapakse, victorious at a general election may find the option of an impeachment with the support of the UNF, an attractive political proposition. The political machinations going on are rather similar to the palace intrigues of Sri Lanka’s bloody monarchial past, where the majority of our kings ascended the throne, killing their predecessor, who was often their father, brother, uncle or other close relative.

In the event that the Court allows the dissolution of Parliament, the respite granted would still be temporary because then essentially the President can keep sacking and replacing Prime Ministers at will. Further the tensions between the SLFP and the SLPP also rose rather quickly to the surface, in the context of their short few weeks together in government office. Most likely, a general election will witness a result reversal of the general elections of 2015, with the UNP getting some ninety something seats and the SLPP eclipsing the UPFA / SLFP, even in an alliance and becoming the largest party in Parliament, but still well short of the one hundred and thirteen seats required for a majority. The alternate route of a presidential election may more likely provide a fresh mandate and a clear path for Sri Lanka’s future progress and the prosperity of her diverse peoples.