Expert Speak Raisina Debates
Published on Dec 14, 2018
Sri Lanka: SC verdict only puts ball back in President’s court

With reports indicating that Sri Lankan President Maithripala Sirisena would still not have UNP’s past Prime Minister Ranil Wickremesinghe again in that post, despite a seven-member bench of the Supreme Court overturning his order dissolving Parliament and scheduling fresh elections on 5 January 2019, the political deadlock on that score may continue for some more time at the very least. This is also because the Wickremesinghe team, while contesting the President’s dissolution decision in the Supreme Court, did not challenge Sirisena’s sacking of the Prime Minister and replacing him with his own one-time bête noire, Mahinda Rajapaksa, on 26 October – which alone set political instability of the present kind rolling down the carpet.

The Supreme Court bench, headed by Nalin Perera, squarely held that after the 19th Amendment to the Constitution, put in place by the Sirisena-Wickremesinghe duo in 2015, the President had lost his unfettered powers to dissolve Parliament any time after the completion of the first year. Instead, now the President could order dissolution of Parliament and fresh elections only six months ahead of the completion of the five-year term, the bench held unanimously. Alternatively, the President should arm himself with a parliamentary resolution backed by a two-thirds majority before ordering dissolution.

Purportedly speaking for Sirisena, former Minister Lakshman Yapa Abeywardena has since said that the President respects the Supreme Court verdict for what it was worth. However, there was no question of his working with Wickremesinghe all over again. This has been Sirisena’s position since the 26 October blow-out. He has also since declared that he did sound out at least two senior leaders of Wickremesinghe’s United National Party (UNP) for replacing the Prime Minister over the past months, but both had declined. According to Sirisena, the refusal of Parliament Speaker Karu Jayasuriya and Minister Sajith Premadasa, son of slain President Ranasinghe Premadasa, to take the Prime Minister’s job left him with little choice but to invite Rajapaksa to take over, once he had made up his mind on Wickremesinghe.

Vexatious litigation?

It is anybody’s guess why the Wickremesinghe camp did not challenge his replacement originally in the courts, or why once decided, they moved the Court of Appeal (CA, equivalent to the High Court in the Indian context), and not the Supreme Court. Those petitions too were filed only after the dissolution act and their challenging the same in the Supreme Court. The CA is yet to begin hearing the case, and any verdict flowing from it could well be challenged in the Supreme Court, all over again.

These quo warranto writ petitions sought Rajapaksa’s views as to the authority under which he got himself sworn in as Prime Minister in the first place. The Supreme Court having granted interim stay of the dissolution decision, Parliament, meeting during the interregnum since, voted out Rajapaksa, not just once but twice, if only to follow what was said to be the constitutional procedure and political protocol. The Court of Appeal also disallowed Rajapaksa from continuing as the Prime Minister, with the result, there is no Prime Minister in the country, but only a President. As irony would have it, 19-A sought to take away such authority unilaterally residing in the person of the President, but that is what has precisely happened, since.

Already, the Rajapaksa camp has contested the CA’s interim stay in the Supreme Court. The UNP has also petitioned the Supreme Court for a seven-judge bench to hear the Rajapaksa appeal, just as the latter had sought and obtained a similar bench in the ‘dissolution case’, after a three-judge bench had granted interim stay of fresh elections, et al. The Rajapaksa camp has also moved the CA, for directions to take away Wickremesinghe’s parliamentary membership, which is a basic qualification for him to become Prime Minister, all over again. In a series of what have begun looking like vexatious litigation, one has also sought a clinical test of Sirisena’s mental faculties – an insult to the high office that he holds under the constitutional scheme.

Where from here?

The Supreme Court’s unanimous decision may have restored Parliament and cancelled out the Sirisena-ordered elections of 5 January. But as the proverb goes, the court too cannot make the President either to quit, as he had threatened to do if Wickremesinghe was ‘reimposed’ on him, or take back the latter. The latter could well have to become the subject matter of another case, if it came to that. There is every likelihood of the same happening as Parliament, meeting with the new-found Sirisena-Rajapaksa camp boycotting the same, has passed a ‘confidence motion’ for Wickremesinghe being made the Prime Minister all over again.

The question is who will wink first, when and after how long? Despite being touted as a loser, Sirisena has some time on his side, but not for too long. For all practical purposes, his possible ambitions for a second term might have evaporated already, his solid civil society backers from Elections-2015 having deserted him in favour of Wickremesinghe and/or the UNP with whom their sympathies lie all along. With an eye on the next parliamentary elections, and also the presidential polls, both due in 2020, the Rajapaksa camp will have to devise a winning strategy that has eluded them ever since they lost the confidence vote in Parliament.

For Sirisena to dissolve Parliament six months before its term ends is not going to happen, as his term would end in early January 2020, but fresh parliamentary polls are not due before mid-August 2020. This means, the President could dissolve Parliament, at best, only in mid-March 2020, going by the six-month rule. For the UNP-led United National Front (UNF), they have no choice but to do it the Sirisena way, as at least as of now, they do not have the two-thirds majority to have him ‘impeached’ unlike what some of their leaders have been claiming.

The last time Parliament passed the ‘confidence motion’ in favour of Wickremesinghe, he could muster only 117 votes in a House of 225, just four more than required. The six-member JVP is against Sirisena and may even vote for his impeachment, but they are not for Wickremesinghe returning as Prime Minister. The 16-member Tamil National Alliance (TNA) is already down to 14 in parliamentary head-count, one having crossed over to the Rajapaksa camp and another abstaining from all House votes since. While keen to have Wickremesinghe restored, if they could help, but clearly keeping his name out of their statements since, the TNA leadership is on record that they would not back any impeachment motion against Sirisena.

The UNP camp would require 150 MPs backing an impeachment motion, but they are 33 short. It is very unlikely that they could encourage massive defection of the kind just now. Nor can Sirisena, as the Head of Government and also of the Cabinet, apart from being the Head of State and Supreme Commander of the Armed Forces, be expected to sit and chair ministerial meetings, as a right, with Wikckremesinghe by his side as Prime Minister. And until the issue is sorted out, either through the courts or political mediation by well-meaning Sri Lankans, including Buddhist monks, most of whom have already taken a political position, mostly on Wickremesinghe’s side, there is no immediate solution in sight.

If one thought that the ‘international community’ could help, almost from the start, most of the western diplomats, based in Colombo, have shown them to be unequivocally on Wickremesinghe’s side from day one. Some from Europe have gone a step or two further and farther, by coming out with statements that were seen by the rival camp as seeking to influence the nation’s judiciary, indirectly though. India, as the closest neighbour, has kept clear of all controversies since. As is known, New Delhi has been keeping a close watch on the developments, without getting itself overly involved or coming up with comments of the western kind, which could only spoil the ground situation more than already – and at every turn.

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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