President Maithripala Sirisena has dug himself into a hole. Each desperate move he made to pull himself up, has further entrapped him, and dragged the country into the worst- ever political crisis in recent times. His last exploit was the capricious dissolution of Parliament, of which constitutionality was challenged in the Court by 12 Fundamental Rights petitions yesterday.The Supreme Court began hearing yesterday afternoon, despite objections by the government parties that they had not been served notice. The President did not seek the opinion of the Supreme Court when he arbitrarily dissolved Parliament in his second Friday night shocker within a fortnight- first being the sacking of Prime Minister Ranil Wickremesinghe. Now the courts that he overlooked have to clear up this mess.
President Sirisena’s is an extreme case of naivety. Not every politician is an authority on the Constitution. But, many do know instinctively as to how to avoid being duped and taken for a ride by quacks. That is just commonsense. Whereas the President is said to be relying on the services of Sarath N. Silva, one-time Chief Justice, whose appointment to the pinnacle of judiciary preceded an alleged politicization of courts. Mr. Silva has argued that the President had been vested with powers to dissolve Parliament under 33 (2) C of the 19th Amendment to the Constitution, which states , “In addition to the powers, duties and functions expressly conferred or imposed on,or assigned to the President by the Constitution or other written law, the President shall have the power …(c) to summon, prorogue and dissolve Parliament.” The proclamation on the controversial dissolution of Parliament on Friday cited, that it was being carried out with powers vested in the President by “paragraph (5) of Article 70” of the Constitution to be read with paragraph (2) ( c ) of Article 33 and paragraph (2) of Article 62 and “in pursuance of the provisions of Section 10 of the Parliamentary Elections Act No 1 of 1981.
However, in doing so, the President overlooked a Constitutional provision incorporated under the 19A to rein in him from arbitrarily exercising such power vested in his office. It effectively deterred the President from dissolving parliament before it completes four and-a-half years into its term.
Under the 19A, Article 70 of the Constitution was amended by the repeal of paragraph (1) of that Article, and the substitution therefore of the following paragraph:- “(1) The President may by Proclamation,summon, prorogue and dissolve Parliament:
Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present),voting in its favour .” The President and his stooges, allegedly told by Sarath N. Silva have argued the Article 70 of Constitution was smuggled in after the 19A passed the judicial review. That could have been clarified had he sought the Supreme Court opinion. Instead, he clandestinely issued the proclamation on the dissolution of Parliament in the dead of Friday night. The Supreme Court verdict would resolve the constitutional basis of the President’s decision.
Yet the looming danger is that given the manifest tendency as witnessed during the past two weeks of the President to dig deeper in the hole he put himself in, he could spring up another surprise should the Court decide the dissolution of Parliament as unconstitutional. Another prospect is that the government would attempt to mobilize the Attorney General department to procrastinate the Supreme court deliberations, and make time to capture institutions and to intimidate political opposition and probably of the Judges themselves.
The 19A which empowered the Constitutional Council and Independent commissions of Public service, Police, Judiciary and Human Rights helped enhance the independence of Sri Lanka’s independent institutions. However,gauging the actual impact of the measures introduced by the 19A on the integrity of these institutions had been elusive. While the appointments to these institutions were streamlined and depoliticized, given the rot in Sri Lanka’s political and institutional crisis it does not come as a shock that those who were duly appointed to high positions had lost no time to wag the tail to their political masters. IGP Pujitha Jayasundara, who was defended by the UNP when he was facing the wrath of the President has since then switched side and is seen accompanying MR.
The current political crisis presents an acid test to two independent institutions: Judiciary and Commissioner of Elections. Their behaviour would set a precedent in redefining the role of independent institutions in a country that is exceedingly politicized - Or they would prove themselves as part of the same rot. Effectively this one is the real test of the 19A .
President Sirisena’s justification on the dissolution of Parliament, as he rationalized in an address to the nation is no less lame than his previous effort to justify the arbitrary sacking of Ranil and subsequent prorogation of Parliament. On Sunday, he claimed he decided to dissolve the House , after the going rate of a cross- over MP reached as high as ‘Rs. 100 million to Rs. 150 million,’ and in one instance as high as Rs. 500 million,’ and the ‘peculiar’ stance of the Speaker to announce a floor vote to gauge the strength of the new MR government. After several expensive crossovers to the Rajapaksa ranks, MR and Sirisena ran out of willing pole-vaulters. Faced with a vote in the House and imminent defeat, the President opted to dissolve Parliament. He also claims he decided to do so to avoid a bloodbath in the House and in every village and town. It was he who created conditions to this potentially violent upheaval. Violence has so far been averted not so much due to his resolve, but due to the over- cautious approach of the UNP. If President Sirisena played the same gimmick with MR, push back would have been a lot more violent.
The President is destined to lose irrespective of the outcome of the Supreme Court ruling. 40 SLFP Parliamentarians led by MR himself defected to the Sri Lanka Podujana Peramuna (SLPP),MR’s new political entity during the weekend. They ditched the SLFP, of which President Sirisena is the leader, in en masse. MR sees no more reasons to pay second fiddle to President Sirisena in their brief sojourn. If the latter prevails in his constitutional coup, it would not be long before, MR checkmates him. If the court rules the dissolution of Parliament as unconstitutional, then there is a different problem. Maithripala Sirisena may try to pull off another nasty surprise just to hang on to power. Either way, constitutional crisis he created is far from being resolved.
Follow @RangaJayasuriya on Twitter