Can courts save us from politicians?


By Prof. Rajiva Wijesinha

There have been four issues of contention in the current crisis that besets Sri Lanka.

The first was whether the President acted constitutionally in dismissing the former Prime Minister. The reason for this being contentious is that the constitution is riddled with ambiguities. I have pointed out elsewhere the reason for these ambiguities, caused by the sleight of hand with which the 19th amendment was drafted.

Given therefore that this is a matter that must be interpreted, it is obviously only the Courts that can decide. It is unfortunate therefore that those who question the President’s action of October 26th did not take the matter to the Supreme Court. That can still be done, and I hope someone does raise there the issue of dismissing a Prime Minister. I hope too that, whatever the Court decides, it gives a directive that Parliament should iron out the ambiguities in the Constitution.

The failure of the UNP to go before the courts is the more surprising in that they did go to Court on one of the other contentious issues, namely whether the President is entitled to dissolve Parliament without being subject to the restriction in Article 70. Here again there is ambiguity because of what seems a catch all power also introduced in the 19th amendment. Again, when the Court decides, I hope it will ensure the ambiguity is removed – which will have to be done in terms of its earlier ruling on the 19th amendment which indicated that the power of the Executive President could not be transferred without a referendum.

The UNP did go to Court on another point of contention, namely could Mahinda Rajapaksa exercise the powers of the Prime Minister. That was initially not a question for the Court to decide, but rather for Parliament. Since the President is entitled to appoint as Prime Minister the person who in his opinion commands a majority in Parliament, if Parliament shows the opposite, then obviously that person cannot function as Prime Minister.

In such a situation the person may resign, but I can quite understand Mahinda Rajapaksa refusing to do this since the responsibility for the appointment is the President’s. Therefore the responsibility for rescinding the appointment should also be the President’s.

The reason the UNP and others went to Court was that there was some confusion about the manner in which Parliament made clear its lack of confidence. This unfortunately got confused with the fourth contentious point, which is whether or not the President had the power to prorogue Parliament when he wished.

On that point it seems to me there is no uncertainty at all, and the President was well within his rights to prorogue. Unfortunately the challenges to that decision spilled over into what seemed arbitrary behaviuor on the part of the Speaker. And that was combined with further arbitrary behavior on the Speaker’s part, when it seemed he was usurping the powers of the Courts to decide whether or not the President could dismiss the Prime Minister.

The question could have been easily resolved had the Speaker followed the Standing Orders and put the motion of No-Confidence on the Order Paper with due process after Parliament was reconvened. In less than a week then, which means a fortnight back, Parliament could have voted on the Prime Minister, and its lack of confidence would have been clear. Instead he opened the floodgates for appalling behaviour by government members, matched by those in Opposition with knives.

Given that then government members decided to boycott parliament, but given the need for a Prime Minister to have the confidence of the house, it made sense for the Court, entrusted with the task, to rule as it did and issue an interim restraining order.

But the continuing confusion in the minds of those opposed to the President’s action is clear by their claim that now the previous government can resume office. Nothing the Court said justifies the argument that it has nullified his removal of the former Prime Minister, and it is sad that the UNP does not take up that matter with the Court instead of trying to confuse that and the totally separate issue of whether the Prime Minister then appointed has the confidence of Parliament.

Given that the Court has issued an interim restraining order, the President should not appoint a new Prime Minister until the Court issues a final order that rules against Mahinda Rajapaksa. So we now have what is in fact the ideal situation under an Executive Presidency, where the Executive can function without any politicians as heads of Ministries.

The President has already asked Ministry Secretaries to continue with their work, and most of them are quite capable of running the day to day affairs of their ministries without politicians to hinder them. Of course, they cannot make policy, but we can survive without that for a few weeks. And if the President does think some new initiatives are necessary, he can set up an All Party Advisory Committee to help him move forward.

He should not, of course, allow any contentious characters who wish to exercise executive power anywhere near the place. But he could certainly work with people like Sajith Premadasa and Eran Wickramaratne of the UNP, Dinesh Gunawardena and Chamal Rajapaksa of the SLPP, and perhaps Mahinda Samarasinghe or Sarath Amunugama from the SLFP plus D. Sidharthan from the TNA. Six such individuals would be quite enough for an interim advisory committee.

And if the country survives without politicians as Ministers for at least a few weeks, perhaps the President could, when the next election, Presidential or General, takes place, also have a consultative referendum on whether an executive without politicians might not be best for the country as is the case in other countries with an Executive Presidency – with a strong legislature in which the politicians can exercise strong controls, not wield strong powers that are never checked.

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