Policies of the yahapalana government with President Maithripala Sirisena at the helm lack consistency, just like the performance of Sri Lanka’s national cricket team. It came to power, promising a crusade against bribery and corruption and abuse of power among other things. But, today, it is tainted and unpopular thanks to the Treasury bond scams and various corrupt deals such as the importation of sick milch cows from Australia. It undertook to liberate the country from the clutches of China, which it accused of having laid a debt trap. It suspended the Port City Project immediately after the 2015 regime change.
But then, the project went ahead following a brief suspension and the Hambantota Port was leased to China. The government obtained more financial assistance from Beijing much to the chagrin of some western powers, which are now all out to secure strategic assets such as ports, land and airports here.
On the political front, too, there have been several U-turns, the latest being the condemnation by President Sirisena of the 19th Amendment, which is the be-all and end-all of the government’s good governance project. Speaking at a government function in Colombo, on Sunday (June 23), he bracketed the 19th Amendment with the now defunct 18th Amendment, which vested some dictatorial powers in the executive president while doing away with the presidential term limit according to the whims and fancies of the then President Mahinda Rajapaksa. He declared that the 19th Amendment had plunged the country into chaos by creating a situation where there were two powerful leaders clashing with each other; he advocated its abolition.
President contradicts himself
There is no way President Sirisena can dissociate himself from the 19th Amendment, which, he says, is riddled with flaws and has rendered the country ungovernable. Addressing Parliament, on 27 April 2015, he extolled its virtues. This is how the President’s Office reported his speech under the caption, ‘Support 19 for the benefit of future generations’:
With the much awaited enactment of the 19th Amendment to the Constitution, the people of Sri Lanka will experience the true meaning of ‘democracy and peace’, said President Maithripala Sirisena, after he began the second reading of the 19th Amendment to the Constitution in the Parliament today (27).
The President went on to say the people of the country are of the view that the arbitrary powers of the executive presidency must be diminished. “This was included in the Mahinda Chintana as well. Which means, those who voted in favour of former President Mahinda Rajapaksa also wanted the 19th Amendment be implemented,” he further said.
The President also urged all the members to unanimously support to pass the amendment for the sake of the future generation.
“During the Presidential polls in 1994 and 1999, former President Chandrika Bandaranaike Kumaratunga pledged to diminish the executive powers of the presidency. President Rajapaksa also promised the same, but failed to bring about what he promised. This is a historic chapter in the city’s history where we about to make the much awaited change,” President Maithripala added.
Prior to the debate on the 19th Amendment to the Constitution, President Maithripala said he was the only President who had been so flexible and committed to reducing or curtailing the excessive powers of the executive presidency.
“Sri Lanka has no international enemies now because of our successful approach towards the international community. The new government and its commitment to enact the 19th Amendment has received immense support from the international community,” the President said.
No more needs to be said, but let it be added that President Sirisena ratcheted up pressure on the UPFA MPs most of whom did not want to back the 19th Amendment to change their stance. But for his determined effort which he was even prepared to couple with coercive action, if case of noncompliance, facilitated the passage of the amendment.
Expert opinions on 19th Amendment
The 19th Amendment contains some serious flaws because it was introduced in a hurry and its drafters were maniacally focused on reducing the power of the executive president to strengthen the position of the PM.
The chief architect of the 19th Amendment, Dr. Jayampathy Wickremarante, himself, has admitted this. He attributes these flaws to the dilution of the original bill at the behest of the President and various other persons.
Respected constitutional expert Dr. Nihal Jayawickrama is of the view that the 19th Amendment has reduced the President to a figurehead, in all but name and the next President will realise this more than the incumbent as the amended and newly introduced constitutional provisions will be fully effective come 2020. His arguments are cogent. In a recent newspaper article, he said:
“The 19th Amendment has already: (i) removed the legal immunity enjoyed by the President; (ii) repealed the absolute power which the President enjoyed of appointing Judges of the superior courts; the Attorney General, and other senior officials, and required him to do so only upon the recommendation of the Constitutional Council; (v) repealed the absolute power which the President enjoyed of appointing the independent commissions, and required him to do so only upon the recommendation of the Constitutional Council; (vi) repealed the absolute power which the President enjoyed of dissolving Parliament at any time, and enabled him to do so only at the request of Parliament, except during the final six months of its term; (vii) repealed the absolute power which the President enjoyed of appointing Ministers and Deputy Ministers, and required him to do so only on the advice of the Prime Minister; (viii) repealed the absolute power which the President enjoyed of removing a Minister or Deputy Minister, and required him to do so only on the advice of the Prime Minister; and (ix) repealed the absolute power which the President enjoyed of removing the Prime Minister from office.”
These views, however, have not gone unchallenged. Veteran political commentator Prof. G. H. Peiris has disagreed with Dr. Jayawickrama. The views expressed by these two experts will be of tremendous interest to students of constitutional affairs.
Prof. Peiris says:
“My understanding, based on a careful matching of Dr. Jayawickrama’s aforesaid assertions with the relevant paragraphs of Articles 41-43 of the Constitution, is that he has overstated his case, and that his article could have a thoroughly misleading impact. This, I illustrate as follows. (Excerpts)
Article 41C. Constitutional Council (CC) to approve appointments
41 C, Paragraph 1: No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.
My observation: The CC powers are restricted to approval or rejection of the President’s nominees. In the contest of the CC being required to submit regular reports on its proceedings to the President, whenever the CC rejects a presidential nominee, the president has the powers of going on with nominating others until the CC approves.
41 C, Paragraph 2: The provisions of paragraph (1) of this Article shall apply in respect of any person appointed to act for a period exceeding fourteen days, in any Office specified in the Schedule to this Article: Provided that no person shall be appointed to act in any such office for successive periods not exceeding fourteen days, unless such acting appointment has been approved by the Council on a recommendation by the President.
My observation: Here again, there are residual powers vested in the president in the sense that the CC could approve an extension of tenure that has been recommended by the President.
Article 42. Prime Minister and the Cabinet of Ministers
Article 42, Paragraph 3: The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.
My observation: The President, as both the Head (the use of the term ‘Head’ imply that presidential authority over cabinet proceedings exceeds that of a ceremonial ‘Chairman’, and that he retains a range of powers such as formulating the meeting Agenda, regulating the meeting discussions, terminating and/or suspending meetings of the cabinet etc).
Article 42, Paragraph 4: 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.
My observation: The appointment of the PM on the basis of the president’s opinion could creates a hazy situation, especially where a general election creates a hung parliament with no party having an absolute majority. This makes it possible for post-election horse-deals (especially those that bring about en bloc changes of party alignments) by the President and by leaders of other political parties. So, shouldn’t this be interpreted as a constitutional provision that vests on the president far-reaching powers?
Article 43. Ministers and their subjects and functions
Article 43, Paragraph 1: The President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers.
My observation: This paragraph of Article 43 also vests in the President, especially in the context of a scenario such as the one we have at present, when the President needs to consult (only where he considers such consultation to be necessary) the PM on the size of the Cabinet and on the allocation of functions among its members only if the President considers such consultation to be necessary.
Article 43, Paragraph 3: The President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.
My observation: Notwithstanding Paragraph 2 of this article which stipulates that in appointing Ministers, the President has to conform to the advice of the Prime Minister, this paragraph (i.e. Paragraph 3 of Article 43) vests in the President far-reaching executive powers in respect of changing the assignment of subjects and functions and the composition of the Cabinet of Ministers.
The extent to which the executive powers of the President have been reduced may be debatable, but they have been curtailed substantially and it is only natural that President Sirisena feels that his authority is being undermined by the Prime Minister. His main problem is that he is without the power to dissolve Parliament until the government has completed four and a half years of its term.
President Sirisena is without a majority in Parliament and, therefore, would have had the PM riding roughshod over him even if there had been no 19th Amendment, for the PM becomes more powerful than the President when they happen to represent two political parties and be at loggerheads.
There have been two such previous situations. In 1994, when Chandrika Kumaratunga (SLFP-led People’s Alliance) was elected Prime Minister while President D. B. Wijetunga (UNP) was the President, and the 2001-2004 period saw President Kumaratunga clashing with Prime Minister Ranil Wickremesinghe (UNP).
President Wijetunga resigned himself to the prospect of retirement and opted for political coexistence, but President Kumaratunga sacked the UNP-led government in 2004, unable to tame the PM. President Sirisena finds himself in a constitutional straitjacket and his attempt to emulate Kumaratunga’s action, i. e. the dissolution of Parliament was foiled by the Supreme Court last year.
Reality dawns on President?
The sobering reality seems to have dawned on President Sirisena at last. The next presidential election is about five or six months away and, as a seasoned politician, he cannot be unaware that as for securing a second term he has the same chance as a snowflake in hell. He had been building his image with the help of his war on drugs, but the Easter Sunday bombings blew his project sky high and currently he is without any politically attractive cause to champion. He says he has signed the death warrants for four convicted drug lords to be hanged, but it is doubtful whether he will be able to come out of the present political mire merely by hanging prisoners. His decision to ban carpentry workshops, among other things, to save forests backfired.
The SLFP’s talks with the SLPP to have Sirisena fielded as the next presidential candidate have failed. The SLPP will have its own candidate. Former Defence Secretary Gotabaya Rajapaksa is tipped to be its choice. The UNP won’t be able to skip another presidential contest. Even if it chooses to field a common candidate, once again, it will opt for anyone but Sirisena.
President Sirisena can act as a spoiler in the next presidential contest at most, but that will benefit the UNP as there will be a split in the anti-government vote. It is unthinkable that he wants the UNP to secure the executive presidency. The SLPP will not forgive him in such an eventuality. The best option he is left with is to skip the race and throw his weight behind the SLPP candidate. This kind of thinking was reflected in his speech at the recent SLFP women’s conference. He said he would not let the presidential election become a three-cornered fight. But he usually does not say what he really means, and vice versa.
President Sirisena knows that he will be safe and politically relevant only under an SLPP-led government. A UNP-led regime will make life miserable for him in retaliation for his hostile action against the current dispensation. So, one need not be surprised if he joins forces with the SLPP.
Meanwhile, SLFP General Secretary Dayasiri Jayasekera, MP has repeated his claim that the President’s current term is longer than thought. His contention is that because the 19th Amendment, which reduced the presidential term to five years, among other things, was ratified in April 2015, after the election of President Sirisena, it does not apply to the length of the incumbent president’s term. His argument does not look tenable in that the Supreme Court decided in January last year that the current presidential term is only five years.
The problem of being Ranil
Ranil’s problems would be over if he could become the next President. It would be a dream come true for him. The UNP would be able to form a government with the help of the TNA, the SLMC and other allies in such an eventuality. If he opts out of the presidential race, once again, allowing someone else to contest and that person wins, he may be able to be the next PM provided the UNP succeeds in capturing power in Parliament. Even if that person fails to win, Ranil can still try to be the PM with the help of the minority parties unless the SLPP matches the performance of the UPFA at the 2010 general election and secures a clear majority of seats. But if Ranil runs for President and loses again, he will find it well-nigh impossible to make a comeback; he will lose party leadership as well.
One of the main problems Ranil is faced with at present is the rapidly crumbling image of his government. The so-called anti-incumbency factor is also weighing heavily on the government.
The economy is in the doldrums and national security is in deep crisis though the government has chosen to put a bold face on the situation. Before last October, when the UPFA pulled out of the government, the UNP had been blaming the President and his MPs for their failure to live up to the expectations of the people. But, now, the UNP has no way of pinning the blame on the President. The government is on a spending spree in a bid to shore up its crumbling image and vote bank. It is giving jobs and soft loans without collateral and showering handouts on the people. It has also launched a development drive called Gamperaliya. These methods may help the government gain some political traction, but the question is whether the UNP will be able to regain lost ground to the extent of being able to outdo its rivals at the next election.
Ranil controls the UNP’s decision-making apparatus, the Working Committee, and therefore is in a position to ward off challenges to his leadership, but the possibility of another revolt against him within the part cannot be ruled out. UNP Deputy Leader Sajith Premadasa has become assertive as never before and there are ministers who openly call for nominating him as the party’s presidential candidate. Justice Minister Thalatha Atukorale, addressing a recent public meeting, called Sajith the next president. She is not alone in promoting Sajith. There are others such as Ministers Ajith Perera and Sujeewa Senasinghe.
A mild-mannered Speaker Karu Jayasuriya has also said something to the effect that if the party wants him to run for President, he is willing to consider such a request. He is a hero to the party at present because of the role he played last year in thwarting President Sirisena’s attempt to dislodge the government, but if he is seen to be a threat to Ranil’s leadership, he will face a hostile campaign within the party and his history of decamping and being a minister in the Rajapaksa government may be used against him.
The signs are that the UNP will have to contend with a three-cornered fight over the selection of the presidential candidate. Ranil is not on a solid wicket; the fact that he has lost two presidential elections and skipped two others is likely to be held against him. The UNP is aware that the next presidential contest is not something it can afford to lose because if it fails to win it will have to reconcile itself to a prolonged winter of despair.
Time was when Prime Minister Wickremesinghe used to give short shrift to Sajith, who even had to wait long before being allowed to see the former. But Ranil is now seen to be making an effort to patch up their differences. He has recently praised Sajith in public. Is this an instance of Ranil kissing the hand he would gladly see cut off?
Reports from Singapore indicate that Gotabaya is recovering there after a heart surgery. The timing of the operation is of import. He needs a couple of months to recover fully and be fighting fit if he is to contest the presidential election in December. He must have taken this into account when he decided to go under the knife.
There has been an interesting development in Opposition politics. Joint Opposition (JO) firebrand Vasudeva Nanayakkara told the media the other day that the SLPP had to decide on its presidential candidate in consultation with its political allies. He added in the same breath that if Gotabaya happened to be so selected, he had no objections. This shows that Gotabaya has to win over some more key persons in the JO if he is to rest assured that they will throw their full weight behind them in case he secures SLPP ticket to contest the presidential election.
Some of the JO members are promoting former Speaker Chamal Rajapaksa, MP as the SLPP’s presidential candidate. They maintain that there are no investigations against him and he can get on with anyone and, therefore, he will be acceptable to the electorate as a potential leader capable of political coexistence. Some JO heavyweights and well-wishers have urged former President Rajapaksa to consider him as the party’s presidential candidate. Mahinda, according to sources close to him, keeps telling them, ‘balamu, balamu’ (let’s see whether it is possible).