The political wrestling match in Sri Lanka beginning in late October has led to a host of articles arguing for and against the Sirisena-Rajapaksa intervention and the attempted deposition of Prime Minister Ranil Wickremasinghe (an issue that is still in limbo). The list of essays in the public realm from legal experts as well as membe s of the intelligentsia is as tall as any coconut tree …. and both parties claim to be Mount Everest. Some of these essays have already been featured in Thuppahi and there are simply too many essaysin print and internet for anyone to read all. So, my samples are chance hits. HERE I have Sam Samarasinghe in one corner and Ruwan Rajapakse in another –not addressing each other as such, but serving as samples of the intellectual fisticuffs here-there-everywhere.
ONE: Sam Samarasinghe: “Sri Lanka’s Democracy in Peril,” Colombo Telegraph, 10 November 2018, https://www.colombotelegraph.com/index.php/sri-lankas-democracy-in-peril/
President Maithripala Sirisena dissolved Sri Lanka’s parliament on November 9, 2018. Media reports suggest that he disregarded the opinion of the Attorney General who had pointed out that it was a violation of the Constitution. This event is organically connected to the sacking of Prime Minster Ranil Wickremesinghe and replacing him with Mahinda Rajapaksa two weeks earlier on October 26.
Those who support the president’s action have cited Article 33 (2) (c) of the 19 th amendment) to the Constitution to justify the dissolution of parliament. His critics have cited Article 70 of the same Amendment that prohibits dissolution before the end of 4.5 years from the first date of meeting of that parliament, unless parliament itself by a two- thirds vote requests dissolution.
There is a similar constituitonal dispute over the sacking of PM. Sirisena justifies his action citing the 19 th amendment to the Constitution that says “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.” Wickremesinghe urged that parliament must be summoned immediately for a vote of confidence. But Sirisena prorogued parliament until November 16 and thereby revealed that Rajapaksa did not have majority support. If Rajapaksa had majority support it makes no political sense to delay reconvening of parliament.
Supreme Court
Under the Constitution the Supreme Court is the final arbiter of all constitutional disputes. Ranil Wickremesinghe who opposed his dismissal did not immediately appeal to the Supreme Court. It probably was a tactical decision because he would have been confident that Rajapaksa did not have the required 113 votes and an appeal to the Supreme Court would have allowed Rajapaksa more time to “buy” MPs to reach the required number.
Bribery
The available evidence suggests that since October 26 the parliamentarians supporting Wickremesinghe were offered two kinds of bribes. The first, very large sums of money funded from unknown sources. The speculation is that at least some of it came from the ill- gotten wealth that the Rajapaksas accumulated when in government.
There is very credible evidence that the 2015 Rajapaksa election campaign received $7.8 million (Rs. 1350 million at today’s exchange rate) from a state-owned Chinese company operating in Sri Lanka. The Chinese ambassador in Colombo was the only foreign envoy (government) that welcomed the appointment of Rajapaksa as PM. We do not know if China also provided money to the Rajapaksa camp to give bribes to MPs that crossover. The silver lining in this otherwise rather sordid picture is that there are enough MPs who were not tempted by large bribes to crossover. There are some honest politicians. The voters may bear this in mind in the next election.
The second form of bribery used public office and future tax money. MPs willing to crossover were offered ministerial positions irrespective of their qualifications and suitability. The new ministers were aware that they would have an opportunity to earn much more while in office from acts of bribery and corruption. This opportunity came from none other than Sirisena and Rajapaksa who criticized, with considerable justification, the mismanagement and likely corruption of Wickremesinghe. Given past experience, it is likely that most voters will forget or ignore this blatant contradiction and hypocrisy when they vote next.
Foreign governments
The role of foreign governments in this fluid political situation must also be factored in to understand the full picture. India and China as major rival powers in Asia and western governments have a stake in Sri Lanka’s political future. The publicly available evidence splits foreign interests into two broad camps. The first consists of India and all other major western countries including USA, EU members and democracies such as Japan. Their public stand is to urge Sirisena to adhere to norms of democratic and constituitonal governance.
Authoritarian model
The second camp consists of one country, China. Its position is different and more complex. China is an Authoritarian state that is developing its own version of state-controlled capitalism. The Chinese see its model as an alternative to the liberal democratic market model of the west. Mahinda Rajapaksa’s tenure from 2006 to 2014 and Sirisena’s recent actions generally fit in with the Chinese model. If Sirisena and Rajapaksa prevail in this instance it would be a major victory for China and a serious setback for western democracies and especially for India that perseveres with the liberal democratic model.
Changing government at the ballot box
Democracy is a fragile form of governance in almost all countries. In Sri Lanka that fragility has been on display in the past. The abortive coup d’état of January 1962 was one such instance. During the 30-year-old civil war Sri Lanka’s democracy came under severe pressure. For example, extended periods of Emergency Rule and the Prevention of Terrorism Act (1989) imposed limitations on civil liberties. Some of the polls, most notably JR Jayewardene’s Referendum in December 1982 to extend the life of parliament by six years, rampant poll abuses, especially in the Eastern Province in the December 1988 presidential election, and the vote rigging and abuse of power in the North Western Provincial Council Election of January 1999, are some notable examples. The above blemishes notwithstanding, Sri Lanka managed to preserve parliamentary democracy for 88 years from 1931 that allowed the people to change governments. Sirisena’s irresponsible actions have weakened if not destroyed this key element of the fragile foundations of Sri Lanka’s democracy.
Legitimizing authoritarianism
The first step to legitimize authoritarianism was taken on October 26 th when the PM was sacked. Although government was, at best, only semi functional after that date, the “new” government took some actions such as reduction in the price of petrol to please the people. The private sector carried on business as usual. The two weeks that elapsed somehow gave Sirisena’s action a veneer of legitimacy and created an environment for further violation of constitutional governance. The dissolution of parliament on November 9th was the next logical step in this path towards authoritarian governance.
Supreme court
Now Sri Lanka’s constituitonal democracy has been put to a severe test. First, it is likely that there will be a challenge in the Supreme Court on the constitutionality of dissolution of parliament. Political pressure can be exerted on the Supreme Court. But these who want to see democracy prevail in Sri Lanka will have to pin their hopes on the court.
Elections commission
Second, the Elections Commission is supposed to be “independent” and may well decide not to proceed with making arrangements for an election until the court gives its verdict.
Bureaucracy
Third, the past two weeks also exposed the weakness of the bureaucracy to cope with uncertainty of governance. For example, it is reported that the Secretary General of Parliament has refused to follow the instructions of the Speaker under whom the former functions. If a general election is held under current conditions the caretaker government that supervises the election will function under Sirisena and Rajapaksa. The public service will have to withstand political pressure to ensure a free and fair election.
Civil society and media
Fourth, the action that civil society, media, and political parties take in the next few weeks will also matter for the future of democracy in the country. Political parties and civil society groups have the right to mobilize their supporters to peacefully express their views on the dissolution. The media can play a crucial role by informing the public on the facts and allowing various shades of opinion to be expressed.
Military
So far the military has remained in the background. Sirisena as the commander-in-chief has the right to give orders to the military. But if he is in violation of the constitution as appears to be the case, and the military (and police) complies with his orders to stop peaceful mass protest against the dissolution, another basic norm of democratic governance would be violated. We have to hope that this won’t happen.
Constitution making
Finally, Sri Lanka’s attempt to write a detailed constitution making provision for every action and eventuality is a fool’s errand. The world is too complex for that. Rules and norms of governance have to change to accommodate changes in society.
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TWO; Ruwan Rajapakse: “Was President right in removing Ranil?” Island, 8 November 2018,
Masquerading behind the so-called “constitutional crisis” is an incompetent UNP leadership
There is a popular belief in Sri Lanka that is well supported by a kind of postmodern pseudo-intelligentsia, that “all politicians are rogues”. This fascinating meme – a viral idea that fits snugly in our consciences – is an intellectually vacuous concept. Yet time and time again it is craftily touted by people with vested interests, who often are on the losing side of a major political struggle and wish to detract support for the winners. Aside from the ostentatious and hypocritical nature of this presumption (especially when politicians themselves speak to it), there are good practical reasons for caring citizens to steer clear of this type of shallow, counterproductive analysis.
How on earth can we improve over time if we are unwilling to spot subtle differences in the choices that are made available to us? Sociologists tell us that progress is made through consistent, small wins. Like in nature, where tiny genetic mutations aggregate over many generations to produce entire new life forms, it is the seemingly small differences in the attitudes and skills of our representatives which ultimately amount to vast socio-political progress (or regress) over time.
The transition from a chaotic, war-torn country into a peaceful and more prosperous one is an excellent example from our own country’s recent past. This transition was led by an administrative team that was explicitly chosen by some of us; a team that succeeded where others had failed miserably for over three decades. They clearly had something better in them that suited the purpose, that some of us saw. So, we absolutely must pay close attention and make definitive choices, or risk drifting into some clandestine political agenda that has little to do with mainstream interests like economic development.
In the present context of the so-called constitutional crisis, the better administrative team would be the one that has a clearer top-level agenda for responsible and purposeful government producing practical results, and not metaphysical rhetoric. Facilitation of economic growth and individual financial autonomy, skilled defense of an economy against global churn or downturn, liberalization of human values and improvements to the system of justice, prevention of terrorism, the enhancement of public services and utilities, and the facilitation of better lifelong education are obvious competency areas to watch out for amongst the two factions. Proof of even a marginal difference between the two factions is worthy of decisive support in favor of one side over the other.
The RW-led Yahapalanaya government performed abysmally in this regard, in comparison with the previous MR one. To put it plainly, they won on a deceitful ticket of dubious merit – the cry of “rogues, rogues”, a political gambit that appeals to the downtrodden, who observe the rich and powerful strutting their stuff with envy, and pity themselves. They did little except to weaken government and bestow undue power on their otherwise apathetic leader, whilst allowing their cronies to embezzle over 10 billion rupees from the state coffers on the side. The only serious charge that was substantiated through the Yahapalanaya government’s infamous “campaign against corruption”, was that of the reallocation of some state funds outside of financial regulations (FR) by the previous MR government, as a grant for prayer cloths for Buddhist devotees! This is after operating a special police taskforce for over three years to bring to justice those involved in supposed major financial crimes. Mind you, this “special” taskforce operated with brazen political bias under the direction of the Prime Minister, arresting or questioning all and sundry from the previous government on a daily basis, alas to no avail.
Let us come to the crux of the dilemma facing us today. Let’s be generous, and steel man the case for a so-called “constitutional crisis”. President MS, after working closely with, or rather attempting to work closely with the RW team for years, found himself to be increasingly irrelevant, and witnessing a rogue political agenda that was derailing Lanka’s economic progress. Worse, he found himself to be the target of a plausible assassination plot with high government connections, and made a quick decision to use his political clout to kick RW and his team out and restore some semblance of controlled, purposeful government. He consulted his legal advisors, and finding a loophole in the constitution that would serve him well in explanations later on, sent RW his dismissal note, and appointed his more capable former ally MR as the new Prime Minister.
Here is my key point. The same pundits who touted the “all are rogues” theory (like the JVP for instance) are screaming that due process is sacrosanct, and if process breaks down, all hell breaks loose. Who says? Why, if there weren’t revolutions in human society, we’d be stuck in a tribal, Neolithic world. Constitutions are drawn up (and amended) to uphold values and good practices as best understood at a given time in history. They however are ultimately just a means to an end, which is the overall well-being of the people at large. Means do not always supersede ends (just as ends do not always supersede means), especially if the means are preventing us from stopping a calamity like bloodshed or economic regression in this case.
We create due process to help us preserve human wellbeing based on existing knowledge, and when we discover a novel situation that needs urgent action outside of previous precedent, we first break the coded rules in the interest of time, and then amend them for future benefit. That’s why there have been hundreds of unconstitutional Executive Orders and Acts of Congress with sweeping consequences in American history, why the Australian Prime Minister was sacked unconstitutionally by the Governor General in 1975, and how Abraham Lincoln emancipated slaves. President MS’s little constitutional coup is not such a remarkable action. So he exploited a loophole in the 19thAmendment to sack a grossly underperforming Prime Minister. The Supreme Court is the final authority to decide on the constitutionality of this action. Perhaps RW knows in his legal mind that MS was technically correct, since there doesn’t appear to be any move so far to clarify the matter with the Supreme Court. In any case MS did it to right a pretty bad situation. The rupee was in freefall, the Prime Minister was covering up the bond scam against a mountain of evidence, there appeared to be no purposeful moves to defend and strengthen the economy, taxation was rising with no corresponding increase in available public utilities or benefits for the disadvantaged. In fact, benefits to the disadvantaged were being taxed, agriculture was neglected, infrastructure development was neglected, and there was evidence of a plot to murder The President. So all in all a good political move! Strongman-ish perhaps in nature but bloodless and easily democratized through parliament within the next few days. The President struck when the iron was hot, to the chagrin of his incompetent opponents who were trusting precedent and loyalty – two worthless values in the face of real problems.
A couple of other points for us to ponder on the present political situation. We now see yet another red herring being tossed up in the air, to distract us ordinary folks from the core issue of the failure of RW to perform sensibly. It is once again a version of the pitiful cry of “rogues, rogues”, this time taking the form of financial inducement for taking up ministerial posts. Listening to the first three audio recordings of MP Ranga Bandara’s phone conversations and his subsequent analysis of them, it is plainly apparent that Bandara is the one who is stitching three different conversations with three different people together, with his own unsubstantiated explanation of what is going on. The first conversation sounds like a credible one between him and a government minister. In summary, the minister was urging him to cross over and join the new government, before the 30 available Cabinet positions are taken up by others. A perfectly reasonable and ethical conversation, that a minister from the new government would have with a UNP MP, to canvass support against RW, whose leadership they (the new government) consider as an active obstacle to the nation’s progress. The second and third conversations, which are suggestive of inducement, are between Bandara and two perfectly unknown persons, one of whom claims to be a minister and the other whom Bandara claims to be an agent of a member of the Rajapaksa family. Where is the evidence that a minister offered money to Bandara, or that these two unknown people are in fact agents of the new government? Any pickpocket can be hired from the street to discuss a bribe over the phone, claiming to represent someone else. I wouldn’t fret over this red herring, unless we can find evidence that clearly shows these two people acted on a minister’s instructions. Transparency international has submitted this “evidence” to a court this morning, let’s see what the legal experts have to say.
The other more general point was that, for the umpteenth time, the RW camp is trying its level best to turn away our attention from administrative performance towards abstract morality. Getting the speaker to voice his personal displeasure over the “immorality” of RW’s sacking and the prorogation of parliament, the talk of bribes, the talk of dictatorships and unconstitutional government, prostration in front of foreign emissaries etc., are all part of a clever yet (unfortunately) regressive political campaign to gain sympathy and rekindle the nonperforming Yahapalanaya government. I urge all well-meaning representatives and citizens to not get lost in these dubious details, but to stay focused on the big picture and act accordingly.
Was there not a gross failure in the administration of our country over the past three years, and didn’t the President make the right move to change the administrative leadership? Sift through the evidence and come to your own conclusions, ladies and gents.
