Democracy in peril

SRI LANKA’S tumultuous democracy is used to strange happenings. When Ranil Wickremesinghe, recently dismissed as Prime Minister, left for Parliament on November 14, he still occupied the official residence of the Prime Minister and insisted that he was still the Prime Minister. But, on reaching the parliament chambers at 10 a.m., he decided not to occupy the chair reserved for the head of government, leaving it for the newly appointed Prime Minister, Mahinda Rajapaksa. He sat in the opposition benches.

But soon after a vote on a motion of no confidence was taken amidst noisy scenes, Wickremesinghe again claimed that he was the Prime Minister. “We will now take steps to ensure that the government in place before October 26 will continue. I wish to inform all government servants and police that you cannot carry out illegal orders from the purported government that has failed to demonstrate the confidence of the people,” he tweeted.

The decision of Wickremesinghe’s party, the United National Party (UNP), to sit in the opposition might have been a sound strategy, but the objective of that strategy was perhaps lost on Members of Parliament. As many as five MPs who had crossed over to the Rajapaksa camp crossed right back to the Wickremesinghe camp because they were aware which way the wind was blowing. The fact that all of them decided to sit in the opposition amounted to their accepting the fact that there was a new Prime Minister and a new Cabinet, and that the new government needed to seek a vote of confidence.

Wickremesinghe asserted that the noise in Parliament did not mean that the vote was not valid: “It is incorrect to say that Parliament was adjourned without a conclusive decision. The Speaker ruled that this purported government does not enjoy the confidence of the House and is illegal. We have further provided a confirmation signed by 122 MPs in favour of this resolution.”

“It is another victory for the people,” he told mediapersons after the vote. “The [Rajapaksa] government has ceased to exist. We will now be taking steps to ensure that the government in place… continues as it should be,” he added.

But as soon as the “new” government fell, the “old” government insisted that it was back in charge. It did not matter that such sleight of hand does not work in a democratic polity.

The same line—the “old” government was back—was parroted by the UNP’s alliance partners too. “The Supreme Court yesterday and the honourable assertion of our MPs today have proved beyond doubt the prevalence of democracy and affirmed which was the legally valid government beyond ambiguity. The defeated must bow to democracy and leave with no further chaos,” said Rauff Hakeem, who is also a lawyer, cleverly sidestepping the question of the legitimacy of the Wickremesinghe Cabinet. Hakeem is leader of the Sri Lanka Muslim Congress (SLMC) and was Minister of City Planning and Water Supply.

The Tamil National Alliance (TNA) leader R. Sampanthan, addressing a press conference, said 122 MPs voted against Rajapaksa’s “purported government saying that they had no confidence in it”.

The Speaker’s office told the media that the Speaker wrote to the President describing the vote: “Anura Kumara Dissanayake, MP from Janatha Vimukthi Peramuna [JVP], moved a no-confidence motion against the government and Vijitha Herath, MP, from the same party, seconded the motion. They further moved that a division should be held for the same day itself… A majority of the honourable Members of Parliament voted in favour of the No-Confidence Motion and accordingly the honourable Speaker announced to the House that the No-Confidence Motion was passed with a majority.” Under the Sri Lankan Constitution, the majority can be decided by a voice vote in Parliament.

Once the vote was lost, Namal Rajapaksa, Mahinda Rajapaksa’s son, claimed that they had no faith in the Speaker because he was “behaving like the Speaker for the UNP”. His party leaders would meet to discuss the next steps, he told mediapersons. “There was no vote,” claimed MP Thilanga Sumathipala, a Rajapaksa supporter. “We will not accept this,” he added.

The reason Parliament could be convened was because on November 13, the Sri Lankan Supreme Court ordered an interim stay on the President’s decision to dissolve Parliament and hold fresh elections. The court will take up the case in December.

All the opposition political parties had approached the court contending that “the purported dissolution of Parliament is ex facie unlawful and in violation of the Constitution, inasmuch as the President is expressly prohibited by the Constitution from dissolving Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting. The only exception provided by the Constitution to the above prohibition is where Parliament requests the President to dissolve Parliament by a resolution passed by not less than two-thirds of the whole number of members (including those not present) voting in its favour.”

In his petition, TNA leader Sampanthan said: “The purported dissolution of Parliament dated November 9, 2018 was inter alia: (a) In violation of an express prohibition contained in the Constitution contained in the proviso to Article 70(1); (b) An unconstitutional attack on Parliament; (c) Ultra vires the powers of the President; (d) Unlawful; (e) An assault on the legislative power of the people; (f) A violation of the sovereignty of the people; (g) A violation of the rights of the petitioner and each and every Member of Parliament; (h) Arbitrary, irrational, capricious, vexatious and unreasonable; (i) Action that offends and is in breach of the principles of reasonableness and legitimate expectation and is motivated by improper objectives; and (j) Null and void and of no force or effect in law.” The petitioners prayed for an interim order that would suspend the operation of the proclamation dissolving Parliament, declare that it constituted an infringement of the fundamental right of the petitioner contained in Article 12(1) of the Constitution, and quash it.

Going by the fact that the court had not intervened until then in the constitutional crisis, Rajapaksa’s supporters had assumed that the earliest that the petition, filed on November 12, would be taken up would be November 15. However, the court, considering this a rare case of extreme importance, decided to take it up the next day. Although the Attorney General (A.G.) raised objections, he did not have much leeway, as the bench led by the Chief Justice began hearing arguments. The A.G. was given the opportunity to respond the next day. By evening the same day, Novermber 13, the court had reached an interim determination.

It was this determination that forced Wickremesinghe to act fast, seize the first-mover advantage and convene Parliament. Fully aware that Rajapaksa would not give up the seat of Prime Minister, Wickremesinghe staged a strategic retreat and sat in the opposition benches. “This was the only way to prove that Mahinda did not have the numbers,” a source said.

The drama

The drama, which began on October 26 when President Maithripala Sirisena dismissed Wickremesinghe, continues to be a cause for concern for millions of ordinary citizens interested in trying to make ends meet, even as the economy hurtles down the path of disaster, fuelled by scams, rank economic mismanagement, a precarious balance of payments position, and a lack of oversight.

On the night of October 26, Rajapaksa’s supporters stormed the state-owned television station, Rupavahini, and also deposed the Editor of Daily News, the state-owned newspaper. The Sirisena-Rajapaksa combine systematically took control of many other institutions in the country.

The usurpers seemed confident of taking government organisations without facing resistance. A Rajapaksa loyalist even boasted that Parliament would not be dissolved. In the first week of November, when speculation of a possible dissolution of Parliament began doing the rounds, Senior Minister Nimal Siripala de Silva asserted at a press conference that “Parliament cannot be dissolved until four and a half years of tenure, and so, there will not be any general election in the near future”.

When things were not turning out the way the Rajapaksas wanted, the family responded by usurping more powers. On November 9, the police department, which functioned under a separate Ministry, was brought under the purview of the Defence Ministry, manned by Gotabaya Rajapaksa. The same day, the department of printing was brought under the Defence Ministry via a presidential notification. Inducements were offered to all those willing to switch sides. So, the question arises as to how the mighty Rajapaksa, with the entire resources of the state at his disposal and even President Sirisena on his side, failed to secure a simple majority in Parliament.

In favour of democracy

Three factors appear to have worked in favour of those fighting for the restoration of democracy in Sri Lanka. First, despite the fact that Mahinda Rajapaksa is the most popular politician in Sri Lanka, the people do not want his entire family to occupy all positions of state power, as they had witnessed the brute power of the family during the 2005-15 period.

Second, the smaller political parties—the Tamil political parties and the JVP, a Sinhala-Left political party—which constantly fight for the rights of their people, took the lead and showed the way.

Third, Sri Lanka has not had a joint opposition that worked together in the past several decades. (The ouster of Rajapaksa in the 2015 elections was the result of an opportunistic alliance between members of Rajapaksa’s own party and Wickremesinghe’s.)

Tamil politicians often viewed the island nation through the prism of “gain or loss” for Tamils. This time around, it was not so. They seemed as much invested in the cause of democracy and the country as a whole as any other ordinary citizen. Esther Hoole, a lawyer, summed up what was possibly going on in Tamil minds in a tweet on November 10: “…For the first time, I’m not mad because I’m Tamil but because I’m Sri Lankan. This dissolution may have a strangely unifying effect.”

TNA, JVP on same side

After some debate over the stand that it should take, the TNA declared that it would not support or recognise the government headed by Mahinda Rajapaksa. It called upon the President to make amends and, finally, when all doors in the political and executive spheres were closed, it approached the court. The TNA gained stature among ordinary Sri Lankans and it also managed to marginalise the former Northern Province Chief Minister, C.V. Vigneswaran, who broke ranks with the alliance to float his own party.

“As a civilised political entity, we as a Tamil Progressive Alliance [TPA] team of six MPs met President Sirisena and told him that we can’t accept his invitation to join his government,” Mano Ganesan, leader of the Democratic People’s Front and the TPA, tweeted on November 7.

It made a clear distinction on what its goals were, unambiguously: “UNPers should not reduce this struggle to reinstalling RanilW. Today the struggle is for the restoration of democracy in Sri Lanka,” he tweeted on November 8. The TPA further made it clear that it would not support any impeachment move against the President. “We are not in favour of adding more fire to [the] current crisis.”

Mano Ganesan also said that when his team met the President, he questioned the actions of the President: “Why didn’t you speak to TPA, SLMC, ACMC, JHU [Jathika Hela Urumaya], who are the alliance partners who worked for you ahead of the January 8, 2015, elections before your drastic act of October 26?”

“I am gratified that SLMC rightfully stood firm to assert the independence of the legislature in the best traditions of representative democracy, saving it from the whims of an executive like a runaway train hurtling to disaster,” said Rauff Hakeem. The SLMC has seven MPs in Parliament.

The surprise addition to this list was the JVP. It is rare that the TNA and the JVP, which is ultra-nationalist but claims to have a communist outlook, are on the same side. The JVP stood firm in its fight—because the party has no love lost between the party and the Rajapaksas—and was a part of the struggle of the joint opposition.

It helped that many foreign powers were in Wickremesinghe’s corner. The United States Embassy in Sri Lanka was unambiguous in its comments: “President Sirisena’s decision to dissolve Parliament poses a vital threat to Sri Lanka’s democratic institutions. There is much at stake and such actions jeopardise Sri Lanka’s economic progress and international reputation. We call on the President to respect his country’s democratic tradition and the rule of law, and to fulfill the commitments to good governance and democracy upon which he and his government were elected.”

Norway, Australia, the United Kingdom, Japan and the European Union also raised concerns over the dissolution of Parliament.

Sirisena’s moves

Much depends on how much President Sirisena will be able to change course for this drama to end and a new one to begin. He is firm that he will not accept Wickremesinghe as Prime Minister and has already made it clear that the crisis would have been averted if any other senior leader from the UNP had come forward to take on the mantle of Prime Minister. His letter to Speaker Karu Jayasuriya reveals his mind. Sirisena stated in the letter that the Speaker was in violation of parliamentary procedures and relevant standing orders on November 14, when the no-confidence vote was taken, and that he was the authority who could appoint a Prime Minister. He also claimed that a Prime Minister did not require the support of the majority in Parliament.

The fact that the President wrote a letter appears to be a climbdown—he recognised the existence of the Speaker and was willing to engage with him. But it is clear that Sirisena will not back down from his demand to replace the Prime Minister. A meeting between the President and leaders of opposition parties took place on November 15 evening. There are various versions as to what happened during the meeting, but politicians on both sides claimed that some headway was made towards a resolution of the crisis minus the Rajapaksas.

The dawn of November 15 hardened attitudes on both sides—the Rajapaksas, who lost the vote in Parliament, and the UNP members, who finally got the opportunity to prove to the world that they still had the numbers. The UNP wanted to push further, while the Rajapaksas could not afford another botched show in Parliament. Although a meeting of the UNP-led bloc and the President was slated for November 15 morning, the UNP members and all the other allies decided not to meet him.

With the Speaker declaring that the session called for the day would go ahead as planned, the stage was set for a confrontation between the ruling and opposition parties, although it was not clear which was the ruling party and which was in the opposition. Rajapaksa had lost the vote of confidence just the previous day and he was obviously not the person heading the government. Since Wickremesinghe had conceded the seat of Prime Minister to Rajapaksa, he was not Prime Minister either.

Once inside the chambers, Rajapaksa insisted that he would occupy the chair allotted to the Prime Minister, leading to some tense moments and name calling. Realising that this would become the focus of the entire drama, the Speaker cleverly allowed him to go ahead and occupy the chair, but ruled that he would treat Rajapaksa as an MP and not as Prime Minister.

“I had the choice of either accepting that invitation [from the President to become Prime Minister] or to decline it,” Rajapaksa told Parliament after the din died down, and claimed that he had only taken up the responsibility to “prevent a major catastrophe from taking place”.

Speech, vote and chaos

His speech was put to vote and all hell broke loose. Members of Sri Lanka Podujana Peramuna (SLPP), anxious to prevent another vote, rushed to the well of the house, only to be greeted by equally boisterous UNP MPs. Some MPs physically fought each other, while others used as missiles whatever they managed to get hold of. For the first time in the history of the Sri Lankan Parliament, the house descended into utter chaos, sending shock waves across a stunned nation. (The SLPP is a political front whose members are loyal to Rajapaksa.)

It is clear that the SLPP members do not want Parliament to function. It is also clear that the UNP members want to keep Parliament open for as long as possible. This marks the opening of yet another front in the no-holds-barred battle between the Rajapaksas and a group of people opposed to the prospect of another Rajapaksa term.

Realising that he did not have many options, Sirisena requested the Speaker and the opposition leaders to meet him again on November 15. Representatives of the parties and the Speaker met him that evening. The President demanded another no-confidence vote the next day and said that once the vote was held he would abide by its outcome.

Another vote was taken amid unprecedented scenes in Parliament on November 16. Innovative protection was provided to the Speaker, as he conducted proceedings from behind a wall of police officials. It was clear that although the police were under the control of the Rajapaksas, they were not taking orders from anyone; for once, they were protecting and defending the democratic process.

The vote was taken and Rajapaksa was voted out for the second time in three days. Although SLPP members showed their true colours inside Parliament, the non-SLPP members did not fall prey to the repeated provocations and concentrated on the vote.

Everything about the second vote was extraordinary: The UNP and the smaller parties bowed down to the demand of the President, who was responsible for the crisis in the first place, and did not let their emotions guide them inside the House. Sri Lanka saw Rajapaksa and his supporters for what they were: the most popular politician in Sri Lanka lost his sheen every minute, as his party MPs unleashed a level of violence unseen in Sri Lanka.

Mahinda’s endgame

The back door got Rajapaksa the seat of Prime Minister but back doors can only take a person so far. The Rajapaksas still control most of the state entities, though, on paper, they have been ousted.

It is here that the contours of the Rajapaksas’ plan begin to emerge. Since their plan “A” did not work, it was time to think of something different. Rajapaksa is trying to cut his losses with plan “B”. The new plan is to bleed the Sri Lanka Freedom Party (SLFP), which he had presided over earlier, and was part of for about half a century, and make its recognisable faces move to the SLPP.

So far, more than 40 MPs have moved from the SLFP to the SLPP. Since there is no anti-defection law in Sri Lanka, MPs can keep moving from one political party to another. But this in itself is a huge gamble.

The weakening of the SLFP does help strengthen the SLPP, but this has been attempted at too early a stage. It is true that the SLPP made handsome gains in the recent local body elections, but the party has not been tested in a national election. Some of the SLFP seniors have decided to move with Wickremesinghe’s UNP. It now looks like the SLFP is in for a three-way split in membership. Such a split will only mean that the two parties essentially contest for the same votes.

These moves will signal an advantage for the UNP in the event of the Supreme Court ruling later this year that elections might be the best way forward.

Even as political calculations are being made, Sri Lanka is seeing a renewed discussion on democracy at various levels of polity and civil society. But all these discussions try to justify the space that a particular actor occupies.

For example, Namal Rajapaksa, Mahinda Rajapaksa’s political heir, has been using the democracy card to hit at his detractors and those opposing the call for elections. “How can an election be undemocratic,” he wondered in a tweet on November 12. “A litmus test for a true democracy is holding periodical elections to seek its citizens’ approval. How can seeking a people’s mandate be considered as undemocratic,” he asked.

One response he elicited was from K. Guruparan, Head, Department of Law, Jaffna University: “A litmus test for a democracy is a) whether it provides by way of a constitution for a representative and deliberative democracy that is reflective institutionally of its pluralities b) when such constitution is valued both politically and legally as supreme.”

The fight continues at various levels—in Parliament, in the Supreme Court and online. The very devout people of Sri Lanka hope and pray that it does not spill on to the streets.

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