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How Is Maithripala Sirisena Able To Continue as Executive President after The Supreme Court Found Him Guilty of Intentionally Violating the Constitution and Fundamental rights Sri Lanka’s Citizens?


Don Manu

Today on the presidential throne of Lanka, there sits a man who gambled with the nation’s heirloom of democracy and endangered the people’s sovereign inheritance, who gambled with the nation’s economy and imperiled it, on Manuwho gambled with the nation’s international image and sullied it, who placed his bets and waged his all on his bizarre belief that he could transgress chapter and verse of the nation’s legal bible with impudence and could escape being found guilty of sinning against it, one who gambled reckless with the people’s rights, with the people’s money, with the people’s reputation, with the nation’s stability and lost, and lost badly.

A man who became the spendthrift of a people’s mandate and squandered the trust and confidence of over six million who had voted for him four years ago in the belief he would not violate their faith. Nor dishonour his oath.

Did he think on that fateful October 26th night when he embarked on a mad excursion that took him beyond the ambit of the constitution’s parameters and, in the cover of darkness and secrecy, appointed Mahinda Rajapaksa as Prime Minister displacing Ranil who commanded the confidence of the House; and then nonchalantly went on to dissolve Parliament itself though the supreme law forbade it unless two thirds of its members requested its dissolution before four and a half years of its five year expiry date, that he could give play to his pipedream and violate the constitution at his whim and fancy without any backlash from the legal guardian deities of Lanka’s justice?

Maithripala Sirisena has a lot to answer for taking the nation on a hell-raising roller coaster ride not in pursuance of the people’s interest but purely to advance some diabolic agenda of his own that finally hit the buffers and came a cropper.

The only question that remains to be answered is why it’s still Christmas for him? Why is the man still here, draped in purple, wearing the crown and holding scepter and orb of presidential office?

Especially when a seven-judge bench held him guilty last week of the cardinal sin of violating the precepts of his own Sirisena Testament, namely, the 19th Amendment, which he himself had laboured to get enacted as engineer and bagged credit for being its architect.

In the landmark judgment, the Supreme Court issued last Thursday, it unanimously held that the gazette notification of November 9th which dissolved Parliament by presidential proclamation was null and void ab initio and had not only violated the fundamental rights of its 122 petitioners but had also trampled upon the fundamental rights of the nation’s 21 million citizenry.

No other president in the nation’s recent 40-year history of presidential rule, including President Rajapaksa, has been found guilty by the Supreme Court of willfully violating the constitutional creed, of trespassing beyond the gamut of its provisions in blatant disregard to the people’s sovereign rights enshrined therein and held by all as sacrosanct.

Sirisena was on the dock last Thursday in the highest court of the land, even as he had been in the public pillory at ground zero for over seven weeks. And to no one’s surprise was found guilty of the heinous offence — coming as it did from the first citizen of the land — of violating the constitution.

Article 38(2)(a) of the Constitution states: Any member of Parliament may by a writing addressed to the Speaker 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 incapacity or that the president has been guilty of an intentional violation of the constitution.

The first leg of this proviso is already before court when a citizen of this country has petitioned the courts to order the IGP and the DIG of the district he lives in to the probe the mental state of the President’s mind as provided for in the Mental Ordinance: Another first for Sirisena, as the first President of this country, to suffer the ignominy of having the question of his mental state placed in the judicial arena.

But hasn’t the second proviso ‘that the president has been guilty of an intentional violation of the constitution’ already come to pass?

Consider, as a layman, whether he could have chosen a better route to arrive at better judgment? The constitution provides him, as the president, the sole privilege of seeking an opinion from the Supreme Court as to the correctness of the action he envisages to take: Whether he has the constitutional authority to take it or whether it will infringe upon its provisions.

Mahinda Rajapaksa astutely took that course when he, in November 2014, requested the Supreme Court to deliver unto him their opinion whether there was any constitutional bar for him to contest the presidential election for the third time, even though it was clear to all that the 18th Amendment he had enacted, entitled him to contest the post in perpetuity to make dawn a Rajapaksa dynasty. But he still went by the rule book, even though the principal to rule on the matter was his appointed warden.

But did Sirisena seek the opinion of the Supreme Court and await its wise counsel whether he will be infringing upon the provisions of the constitution when he appointed Rajapaksa as Prime Minister who did not command the confidence of the House, summarily sacking the one who did? Did he two weeks later, seek the opinion of the Supreme Court before he issued his gazette proclamation dissolving Parliament before its time? Did he, at least, seek the legal opinion of the Attorney General, Jayantha Jayasuriya, duty bound as he is as the Government’s lawyer to tend his opinion when called for? No he did not. Probably because he knew it would not be to his favour, to his own warped line of thinking.

Instead he stuck to his guns and sought the refuge of his own counsel, aided and abetted by the coterie of his advisors, yes men who perhaps nodded their heads in agreement, lest a nay will bring the presidential guillotine crashing down on their necks.

Whatever the layman’s leaning maybe as to the profundity of Sirisena’s judgment, let’s read for good measure what seven Supreme Court Judges had to say about his conduct unbecoming.

In a voice that shrilled in unison, to echo the choir of Hulftsdorp Hill, to awaken the dulled masses from the torpidness of sleep, Chief Justice Nalin Perera had this to say in his landmark judgment of President Sirisena’s unilateral and arbitrary actions:

He declared that the constitution did not bestow upon the President unrestricted omnipotent power. It was not akin to a royal prerogative power, the Chief Justice ruled. The head of State, the President, was nothing more than a creature of the constitution; and his powers were limited to those that were specifically vested in him under the Constitution and the law. And, equally, the exercise of the same powers by the President is circumscribed by the provisions of the Constitution and the law.

If President Sirisena had dreamt in his wildest dreams that he had, like ancient kings of yore, a divine right to rule the land protected by an armour of infallibility where his sole word was law, he should have been shaken to find, in the words of the Chief Justice, that he had been highly mistaken. And, in gaudy daylight, realised that he was not only a creature of the constitution but, in UNP parlance, a caterpillar turned butterfly under Ranil’s auspices.

But if that was bad in the Supreme Court’s damnation, worse was to come. The quintessence of the Supreme Court judgment held that the president had not only violated the rights of the petitioners in their capacity as parliamentarians but their right as citizens of this country. Chief Justice Nalin Perera said: “The Proclamation has been issued outside legal limits and has resulted in a violation of Petitioner‘s rights both in his capacity as a parliamentarian legitimately elected to represent the People and in the capacity of a citizen who is entitled to be protected from any arbitrary exercise of power.”

And he didn’t stop there. He went to drive the last nail home.

The Chief Justice declared: “For the reasons set out above, I hold that the Petitioners’ rights guaranteed under Article 12 (1) of the Constitution have been violated by the issue of the Proclamation and make order quashing the said Proclamation and declaring the said Proclamation null, void ab initio and without force or effect in law.

For the first time in Lanka’s forty years of presidential rule, had a president been found guilty violating the fundamental rights of its citizens. A violation of the constitution which Sirisena as President had sworn to uphold, both in letter and in spirit.

And, for further measure, Supreme Court Justice Sisira de Abrew, in his separate but concurring judgment added: “It is the duty of the President of the Republic to respect and uphold the Constitution. This view is supported by Article 33(1) of the Constitution which reads as follows. 33.(1) It shall be the duty of the President to (a) ensure that the Constitution is respected and upheld.”

Justice Abrew declared: “The President of the Republic in terms of Article 32 of the Constitution must take an oath stating that he would uphold and defend the Constitution. Therefore it is seen that the President of the Republic is subject to the Constitution. In Mallikaarchchi Vs Shivapasupathi, Attorney General wherein Sharvananda CJ held thus: “the President is not above the law.”

Parliament need not impeach the president. The Supreme Court, in a tacit, subtle, unsaid nudge, had already delivered its pronunciation though it may never have intended to do so for the issue was not before its Lordships’ court.

So much for the layman’s view and the legal indictment from the apex bench of seven supreme judges on the president’s conduct and ‘arbitrary exercise of power’ and ‘constitutional violation’.

Politically, worse was to follow in the legal track. And the neigh broke nigh in the very Sirisena stables when a senior SLFP stallion kicked its hooves in the presidential face and made him eat hay under the scorch of justice’s sun.

Sixty-eight-year old Kumar Welgama, a long standing SLFP stalwart, was the first and only one from the SLFP galleon to mutiny against his captain’s decision to throw Ranil overboard and make Mahinda his first mate. He said then, “ Mahinda need not have come from the back door when he could have come from the front entrance” — and stating that he was against Sirisena’s sordid affair, washed his hands off it.

But if that was just a taster as to his own distaste to what was happening within his own political party, this potential SLFP presidential candidate unleashed the full venom of ire and dissatisfaction of the manner in which his leader Sirisena had conducted himself. Coming from the old born-and-bred SLFP stock, it was more potent poison than any member of the UNP could have mustered and would have served to sting Sirisena and rattled him to his core.

In a no-holds-barred statement, coming shortly after the Supreme Court verdict last Thursday, Welgama called for his leader’s resignation forthwith.

The SLFP Vice President and Kalutara District MP Kumara Welgama told The Island:

“The Supreme Court has found that President Sirisena violated the Constitution. One who has acted in contravention of the Constitution should not hold that position. He can be impeached any moment and, more than that, he should be aware that continuing to hold that post by a person who violated the constitution can give rise to numerous other problems.”

The SLFP stalwart said that when a country was led by a person who had no legitimacy to hold the post of head of state, other law enforcing authorities would find it difficult to discharge their duties to uphold the rule of law.

“It is time for Sirisena to step down from the post and let the constitutional process to take its own course. His stay in that post will only further worsen the situation. On the other hand, this issue will be detrimental to the country’s interests internationally. Being a seasoned politician the President should understand the possible repercussions of this situation. A president who does not respect a court ruling cannot be trusted to respect anything at all.”

So much for the lay abhorrence, so much for the legal condemnation, so much for the abomination coming from his own backyard uttered by a vice president of the party Sirisena betrayed in 2014 after a hopper crunch with Mahinda but with the UNF help won the presidency and upon becoming president managed to capture the SLFP leadership, let’s turn now to the moral issue that must keep him awake sometimes at least on Friday nights.

First, when he, in a televised address, stated that he owes his position to the UNF and that, he will never betray the trust placed on him but will always bear gratitude until he breathes his last. Has he done so? By making Ranil walk the plank, he has only succeeded, whatever the political differences he may have had, in throwing the nation’s fortunes overboard and destabilising the ship of state, mindless as to whether it’s wrecked upon the rocks.

Second, he seems to suffer from a congenital defect that must cause the nation to worry. It’s his inability to comprehend the limitations of his powers coupled with his stubbornness to seek advice from the Supreme Court or consult the Attorney General at least for help and guidance, especially when it comes to appointing a prime minister.

He seems to think, the power is absolute when it is not. He seems to think that the one who commands his confidence is the man for the job when the constitution spells it as not. As the Sunday Punch spelled it on December 9th:

“Article 42(4) states: ‘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.’

The operative phrase is ‘command the confidence of Parliament.’ Not command the confidence of the president.

In the event of an uncertainty as to the Member of Parliament who is most likely to command the confidence of Parliament, the President is entitled under this Article to use his discretion, right or wrongly, to appoint the one the President thinks is most likely to command Parliament’s confidence: To choose between X or Y.

But if Parliament, in its total choir of 225 were to sing in one unified harmonious voice the hosannas of one Member as the chosen one who commanded their confidence, the President’s discretionary power stands negated and he must surrender his discretionary opinion to that imperial combined command of Parliament.

It’s the failure to realise the ambit of his constitutional powers that has landed Sirisena in the mess he is in. His failure to realise that even 113 MPs in Parliament expressing their demand for one MP to be the Prime Minister will do to rob him of his discretion to appoint one of his choice. Pity.”

But this failure is nothing new. Shortly before the General Elections of 2015, he held the same view and decalred that even if the UPFA wins the elections, he will not appoint Rajapaksa as Prime Minister even if the House were to swear by him.

In a statement issued by the President’s media unit, he stated: “I will continue to give leadership to the change ushered in on January 8 with the newly elected members after the next General election, I will form a government with the victorious political parties after August 17 election but I have no intention of appointing Mr. Mahinda Rajapaksa as Prime Minister.”

And he did it again this year when it came to the reinstatement of Ranil as prime minister whom he had rashly sacked though no constitutional provision provided him the right to do so after the 19th Amendment became law.

He told political party representatives last month that he would not re-appoint UNP Leader Ranil Wickremesinghe as the Prime Minister. The President indicated to them that another person should be nominated to the post instead of Mr. Wickremesinghe in the event Prime Minister Mahinda Rajapaksa was unseated through a properly passed no-confidence motion against him.

On November 25th he said, in an interview with the foreign media, “I will not appoint Ranil Wickremesinghe as prime minister in my lifetime. Even if they have a majority, I have told them not to propose him as I won’t appoint him as prime minister.”

He elaborated further and said that if Ranil Wickremesinghe is reinstated as Prime Minster he will resign within the hour and go home.

Last Sunday Ranil Wickremesinghe was sworn in by President Sirisena as prime minister. The question now on the nation’s lips is: ‘Has Sirisena’s watch stopped. Or else why is he still here, draped in purple.’

How much more can a mortal man take, though he be president ‘to suffer the slings and arrows of outrageous times’ when he finds himself scorned by his countryman, condemned by the courts and cast stones by his own party stalwarts to sit clad in sarong on the purple presidential throne of Lanka?

Rajapaksa’s folly was not to retire to his Medamulana home in grace and style when the bells tolled for him. Now that the bells toll for Sirisena, perhaps, it’s best for him to retire to Polonnaruwa on gardening leave.

Courtesy;Sunday Times