In 1978, when the all-powerful executive presidency was introduced, LSSP stalwart N.M. Perera asked what would happen “if the presidency goes to a mad man”? The manifest limits of due process and absence of checks and balances against the behaviour of the incumbent has raised that pertinent question once again. Sri Lanka has never addressed this constitutional lacuna in full. Tinkering of the Constitution has not helped either.
J.R. Jayawardene, the first executive was not insane, but he was destructively opportunist. He drafted the 1978 Constitution to serve his personal and political ambitions and then tinkered it for 13 times. He was also an arrogant old man, full of ego (who was finally put in his place by young Rajiv Gandhi), a false god among a dozen other so-called national leaders.
The executive presidential system was introduced as means to address urgent and unique problems of economic development that the third world countries are faced with. However, its track record as an enabler of economic development and JR’s oversized stature ought to be gauged in comparison to the latter’s contemporaries of the same ideological vein: Lee Kuan Yee, Mahathir Mohammed, Suharto, and even Augusto Pinochet, some were bloodier than others, but they all uplifted their countries through right leaning authoritarian model. JR is a none-entity in this equation.
But he proved to be extra calamitous. His arrogant handling of State affairs created far- reaching political instability, and gave rise to two insurgencies in the North and the South. Effectively, mayhem he sowed killed more people per capita, than any of the right-wing leaders of his time. Pinochet looked like a convent nun.
JR did not clean up the mess he created, instead he handed over a burning nation to his successor, R. Premadasa. Nor did he create prosperity. Economic growth was dismal 4 per cent, despite the low GDP base of the country at the time (Whereas Mr. Premadasa, during his short tenure, defeated a moronic insurgency and doubled down on economic development).
The executive presidency easily fit into the political, electoral and social conditions of some countries, French model being often cited as a perfect constitutional arrangement. However, it did not work for Sri Lanka. Here and in a good part of the third world countries, it created all-powerful, nepotistic, tyrants and despots.
There are two main reasons for that. One is the institutional explanation; Sri Lanka, say for instance, unlike France or America, lacked independent institutions that can moderate the behaviour of an all-powerful president. Conversely, powers of executive presidency have weakened the mandate of these institutions.
The second is (a politically incorrect) an orientalist explanation: Leaders and people of this part of the world are inherently less principled, among other things, in constitutional governance. This is a product of their civilisational exercise. In these societies, electoral democracy did not necessarily promote rational choice. Rather, it emboldened the grassroots ugliness and provided it with a representation at the highest level of political offices. For instance, in India, 34 per cent of the MPs in Lower House are either convicted or facing criminal charges in courts, according to a study by Milan Vaishnav of Carnegie Endowment for Peace. Interestingly, according to the same study, politicians who are facing serious charges have more chance (18%) of winning his or her race, compared with a less rowdy rival (6%).
Such grassroots conditions also foster contempt for constitutionalism. Politicians are betting on the grassroots’ ignorance when they brazenly violate the Constitution and justify their action in a bout of populism. However, the current political crisis in Sri Lankais different from the past. Old habits of political class die hard. The retrograde electorate that tolerated such old antics had not withered away.
However, new laws have been enacted to lessen the absolutism of the executive presidency. That task was achieved, to a great degree, first by the 17th Amendment (much of which was annulled by the 18th Amendment) and then by the 19th Amendment, which set limits on the president’s power to dissolve Parliament, until the completion of fourand a half years of the House, and also set up independent commissions, depoliticising key organs of the government.
Therefore, the current behaviour of the president is no longer supported by the Constitution. In contrast, it is unconstitutional. Mr. Sirisena, by repeatedly refusing to accept the verdict of three consecutive no-confidence motions, has violated the Constitution. His bragging that he would not appoint Ranil Wickremesinghe as prime minister, even if the latter is ‘supported by 220 Members of Parliament’ smacks of contempt towards Constitution and constitutionalism. His open admission to , in an interview with Kelum Bandara, that Mahinda Rajapaksa could have won the support of 113 MPs, if he had enough money to cough up as bribes, borders a confession of complicity in bribery.
Unlike J.R. Jayawardene, whose abuse of power of his office was justified in the text of the Constitution, Mr. Sirisena has no such constitutional grounds to find refugee. In that sense, the president has made himself liable for an impeachment.
Under Article 38 of the Constitution, any Member of Parliament by a writing addressed to the Speaker, can give notice of a resolution alleging that the president is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the president has been guilty of—
(i) Intentional violation of the Constitution;
(iv) Misconduct or corruption involving the abuse of the powers of his office; or
(v) Any offence under any law, involving moral turpitude and setting out full particulars of the allegation or allegations made and seeking an inquiry and report thereon by the Supreme Court.
Such a resolution should be signed by a two-thirds majority or signed by more than half of the Members of Parliament and the Speaker be satisfied that such an allegation warrant inquiry and report by the Supreme Court.
Impeachment of the president should then be passed by no less than a two-thirds majority in Parliament voting favour. Then, allegations contained in such a resolution are reported to the Supreme Court by the Speaker. After which the Supreme Court conducts a due inquiry into the allegations and informs its determination to the Speaker. Should the Supreme Court determine that the president is incapable of discharging the duties of his office or guilty of allegations outlined in the resolution, Parliament may, by a resolution passed by a two-thirds majority voting in favour, remove the president.
However, exhaustive procedure aside, the practical question is about the numbers. The UNP is well short of a two-thirds majority to impeach the president. However, there is another school of thought that it is only the president in person, and not his actions, that are immune from prosecution. In that sense, once he cease to be the president, Mr. Sirisena can be charged before the court of law for violating the Constitution.
According to Article 35 of Constitution, (1) While any “person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the president in respect of anything done or omitted to be done by the president, either in his official or private capacity: Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the president, in his official capacity”.
Article 126 states that the Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognised by Chapter III or IV of the Constitution.
The president’s earlier incline to rescind the gazette notification on dissolution of Parliament was attributed to these concerns. However, talks with the UNP broke down last week after the UNP insisted on Ranil Wickremesinghe as prime minister.
Subsequently, the UNP withdrew a fourth no-confidence motion, which it had earlier agreed to table in Parliament, on the advice of the president. It expressed for the forth time, no confidence in the government of Mahinda Rajapaksa, and requested the president to appoint a new government. The UNP withdrew the motion after the collapse of the talks with Mr. Sirisena.
Sirisena is a victim of his own prejudices against Ranil Wickremesinghe. Also, he seems to be a hostage of his self-interested political and legal advisers, the quality of whose advises beg the question of their true motives vis a vis the president.
A good deal of Mr. Sirisena’s fate hangs on the two court rulings; the Supreme Court ruling on the dissolution of Parliament and Quo Warrento before the Appeal Court questioning the constitutional basis under which the purported government of Mahinda Rajapaksa and his Cabinet were appointed. Both courts have issued restraining orders against the dissolution of Parliament and the exercise of powers of the government by Mr. Rajapaksa and his ‘Ministers.’
Both rulings are expected to be issued this week, before the court vacation begins on December 14.
The president had said he would respect the court rulings. However, he has repeatedly gone back on his word since he himself triggered the current constitutional crisis five weeks ago. The question of 20 million people is what would happen if the president ignores the court ruling. At the root of the current stalemate is his refusal to appoint Mr. Wickremesinghe as prime minister, despite the UNP and TNA, which collectively command 120 votes, have in writing expressed their support to the latter. Unless the Appeal Court that hears the Quo Warranto restores Parliament that existed before October 26 — whether it has a mandate to do so is open to legal interpretation — it is unlikely that the current crisis would end, even if both court rulings are issued in favour of the petitioners.
Maithripala Sirisena is exploiting this lacuna. He knows he is unlikely to be impeached immediately. He also knows that Constitution is bereft of means to hold a serving president accountable.
However, if the Sri Lankan democracy is to set a deterrent against the abuse of power by the holders of high offices, the long-arm of justice should reach them even after retirement.