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Current impasse: a way out



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By Neville Ladduwahetty


The outcome of the 2015 general election was such that no political party secured a majority to form a government. Consequently, it became a matter of necessity to form a coalition. This led to the two political parties with the largest majorities (UNFGG with106 and UPFA with 95) to commit to the formation of a National Government under provisions of Article 46 (4) and 46 (5). These constitutional provisions not only helped form a majority government but also created the opportunity to increase the Cabinet of Ministers from 30 to 48, and State and Deputy Ministers from 40 to 45, thereby increasing the Executive from a total of the 70 stipulated in Article 46 (1) to a total of 93.


Since the UNFGG was the political party with the larger majority in the coalition (106 v. 95), it was natural for Ranil Wickremesinghe as the leader of the UNFGG to be appointed the Prime Minister. The rest of the Cabinet of Ministers, State and Deputy Ministers were distributed between these two political parties. It was this formation, headed by the President as the Head of the Executive and the Head of the government and the cabinet of Ministers, that was responsible for the "direction and control of the Government of the Republic", as per Article 42 (1).


With the withdrawal of the UPFA from the National Government on 26th October, the coalition that was forged between the UNFGG and the UPFA ceased to exist. Consequently, there was a constitutional necessity to reduce the Cabinet from 93 to 70, which meant appointing a fresh Cabinet of Ministers and State and Deputy Ministers, and dispensing with the extra 23in the Executive.


GROUNDS for a NEW CABINET


Had the President been satisfied with the ‘direction and control’ of the National Government it is likely that the President would have requested the then Prime Minster to reformulate a fresh Cabinet. Since this was not the case, as evident from the growing discontent in the country, a fact reflected in the February 2018 Local Government Elections results, the President had no choice but to select former President Mahinda Rajapakse, who in his opinion not only mirrored his own ideology but also had the proven ability to alter the direction of the Government.


The bold initiative taken by the President has polarised the country into two camps; those loyal to the former Prime Minister and those loyal to the newly appointed Prime Minister. While the former group is labeling the measures adopted by the President as undemocratic and unconstitutional the latter group is defending the President’s actions with equally strong opinions and arguments.


OVERCOMING the IMPASSE


One of the strategies proposed to overcome the impasse is to seek an opinion from the Supreme Court as to whether the measures adopted by the President are constitutional or not. There is little prospect of the Courts getting involved in making a determination as to the constitutionality of the measures adopted by the President on grounds of Parliamentary Privilege, since appointing a Prime Minister and a Cabinet is a matter for both President and Parliament; a lesson learnt when a petition was filed challenging the constitutionality of the National Government.


The other option that is being vigorously advocated by the loyalists of the former Prime Minister is to establish which candidate has the "confidence of Parliament". This factor is to be judged on the basis of votes in Parliament. The claim made by the former Prime Minister and his loyalists both nationally and internationally is that he is in a position to demonstrate that he has a majority in Parliament and therefore has the confidence of Parliament.


This approach has precipitated a bidding auction with Members of Parliament being induced to support one Prime Minister or the other with large sums of cash. Furthermore, the current Parliament has Members who were not elected by the People at the August 2015 election. If such a tainted Parliament is to be reconvened as vigorously advocated by the national and international backers of the former Prime Minister in order to determine who has their confidence, it would amount to a mockery of the immutable principle of representative democracy. Furthermore, for them to insist on outcomes that are dependent on the sentiments of elected representatives is to ignore their own experiences of the disconnect between elected representatives and the People, as demonstrated in countries such as UK regarding Brexit, where three fourths of the UK Parliament wanted to remain in the EU while the People of UK wanted to exit, and the projections relating to President Trump’s election in the US. Therefore, it is imperative that Sri Lanka must abandon this strategy and adopt one that is based on accepted practices of constitutionalism and true good governance if it is to regain its dignity as a respected democracy.


RECOMMENDED STRATEGIES


The recommended strategies should be based on the "Will of the People", expressed by them directly and not on the expressions of elected representatives in Parliament. One strategy is to resort to constitutional provisions that support dissolution of Parliament and the other is through the Franchise of the People exercised at a Referendum. While dissolution is dependent on the President being convinced of the legitimacy of the approach, and is unique to Sri Lanka’s Constitution and therefore could be controversial, the latter, namely, a Referendum is universally accepted as a legitimate technique to ascertain the Will of the People on a specific issue of concern.


The option of dissolving Parliament could be exercised by the President under provisions of Article 33 (2) (c) that 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 - to summon, prorogue and dissolve Parliament". It should be emphasised that such an express provision does not exist in the 1978 Constitution. Since this provision is in addition to other powers conferred and assigned to the President under provisions that include revised Articles 62 (2) and 70, it must mean that the framers of the 19th Amendment made a special effort to confer this additional power on the President.


While the exercise of provisions in Article 33 (2) (c) may not resolve the impasse, a cleaner strategy would be to let the People decide who should be their Prime Minister by invoking Article 86. This Article provides for the President to "submit to the People by Referendum any matter which in the opinion of the President is of national importance". Since the situation in the country is clearly of "national importance", it is only such a decisive approach that could resolve the current impasse. Furthermore, it cannot be challenged because under Article 4 (e) the exercise of the People’s Franchise at a Referendum is binding, because it is an integral component of their Sovereignty as per Article 3.


CONCLUSION


The current polarization of the Sri Lankan polity needs to be resolved decisively and quickly if the prevailing impasse is to be overcome. The approach advocated by a section of the national polity and by the international community is to reconvene Parliament in order to establish which candidate enjoys the majority’s "confidence of Parliament". This strategy is unacceptable in the background of a tainted Parliament made up of defeated candidates, as well as those whose loyalties have been bought for cash. Alternative options open to the government are either to dissolve Parliament by invoking provisions of Article 33 (2) (c), or for the People to choose who their Prime Minister should be at a Referendum, given the fact that the Franchise expressed via a Referendum is binding. The latter option cannot be challenged because the Franchise is an inherent component of the Sovereignty of the People.


When Parliament reconvenes, an announcement could be made by the President that the current impasse will be resolved by the People at a Referendum since the situation in the country has reached such a threshold that it has become a matter of "national importance".


 
 
 
 
 
 
 
 
 
 
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