January 20, 2018, 8:22 pm
The Supreme Court determination that the President Maithripala Sirisena could hold office for only five years according to the 19th Amendment, was one of the most significant political developments to take place after the yahapalana government was formed in 2015. It appears that all this while, the President has been operating on the assumption that his term ends on 9 January 2021 even though the 19th Amendment shortened the presidential term to five years. The expectation was that just as the executive presidency was retained through the 19th Amendment which was brought for the ostensible purpose of abolishing it, the length of the president’s term also could be retained despite it having been shortened by the 19A. The SC determination prevented the 19th Amendment from being turned into a complete mockery. The question of the duration of the President’s term according to the 19th Amendment was first discussed seriously in The Island on 19 February 2017 in a lengthy article by Shamindra Ferdinando.
In response to a claim by Sirisena loyalists in the SLFP like Ministers Faiszer Musthapha and Dilan Perera that President Maithripala Sirisena was entitled to a term of six years regardless of the 19th Amendment to the Constitution, The Island interviewed Dr. Jayampathy Wickremaratne, national list MP of the UNP and one of the principal architects of the 19th Amendment, Manohara de Silva, PC and senior lawyer Chrishmal Warnasuriya and all three of them dismissed the SLFP’s claim and drew attention to the transitional clause in Section 49 (1) (b) of the 19th Amendment which clearly states that “the persons holding office respectively, as the President and Prime Minister on the day preceding April 22, 2015 shall continue to hold such office after such date subject to the provisions of the Constitution as amended by this Act.” Thus legal luminaries from both sides of the political divide were very clear that the 19th Amendment had not only shortened the term of the presidency but also made it specifically applicable to President Sirisena.
In a statement issued on the day that nominations closed for the local government elections – 14 December 2017 – former President Mahinda Rajapaksa warned his supporters to look lively because the next presidential election had to be mandatorily held before 9 December 2019 according to the provisions of the constitution as amended by the 19th Amendment. When it became known that President Sirisena had written to the Supreme Court asking for a determination on his term, former minister Basil Rajapaksa had immediately contacted Prof. G.L.Peiris and appraised him of this development. Within a couple of hours, GLP had lined up a legal team to represent the various constituent parties of the Joint Opposition at the Supreme Court’s open hearing on the matter.
GLP’s conviction pays off
Some prominent individuals had warned Prof. Peiris not to expect much from this exercise because it was highly unlikely that President Sirisena would have taken the drastic step of asking the SC for a determination on the length of his term in office in the middle of an election unless there was a pre-arranged understanding on the matter. However Prof. Peiris had continued to organize legal resistance to the move because he was convinced that it would be next to impossible to write a determination declaring that the President’s term in office would be six years even after it was brought down to five years through a constitutional amendment which was expressly made applicable to the incumbent President as well. What was most noteworthy was that the UNP, JVP and TNA were not represented in court to argue against the President’s query. Many people thought the UNP may have had second thoughts about rubbing the President on the wrong side in a situation where he could easily use the bond commission report as a weapon against them. The TNA would have been absent because they have no interest in dislodging Sirisena from his position. What was most problematic was the JVP’s absence in court.
The day following the SC determination came the confrontation between President Sirisena and the UNP ministers in Cabinet over public criticisms of the President made by UNP backbenchers. This was taken by many people as a sign that the SC determination had rattled and unhinged the President. He stormed out of the Cabinet meeting saying that he was being criticized by UNP ministers and pro UNP websites among which lankaenews had been specifically mentioned by name and also on facebook – by which the President seemed to indicated that he suspected that it was the UNP’s facebook brigade that was at least partly responsible for the social media campaign against him. The immediate reason for the President’s ire had been UNP parliamentarian S.M. Marikkar’s frontal assault on him a day earlier.
Marikkar’s broadside was in many ways just what the UNP needed. For far too long the UNP has been at the receiving end of attacks from the SLFP. Throughout the duration of this so called national government we saw the UNP taking the rap for every unpopular deed done by this government while the SLFP which also benefited from these unpopular deeds, always tried to pose as the moderating factor that the kept the UNP in check. If the UNP imposes a new tax or increases an existing tax, the SLFP half of the government joins the chorus of protest and then makes feints at changing or making some adjustments in the UNP’s proposal so as to win over the public. No actual change may finally be made but the end result of all this is that the SLFP gets to play good cop while the UNP is always left with the role of bad cop.
The 99-year lease of the Hambantota harbor is a case in point. Though this was a deeply unpopular decision and resisted even by the UNP Minister Arjuna Ranatunga it was finally the SLFP President who pushed the deal through by removing Ranatunga from the Ports and Shipping ministry and appointing in his place Mahinda Samarasinghe who enabled the deal to go through on the terms agreed to by the UNP. Yet the opprobrium for the privatization of the Hambantota harbor attaches firmly to the UNP. At least a part of this is due to the Prime Minister’s singular genius for making the wrong gesture at the wrong time and literally hugging the outsized cheque for USD 290 million that was handed to the government on the day that the Hambantota port was taken over by the Chinese company.
UNP as the whipping boy
The bond scam was another instance when the UNP was taken to the cleaners in public by the SLFP. If at all, the SLFP ministers in the government have been even more aggressive than the Joint Opposition in hounding the UNP over the bond scam. The bond scam was first investigated by a COPE committee headed by UPFA parliamentarian D.E.W.Gunasekera. Then it was investigated by yet another COPE committee headed by JVP parliamentarian Sunil Handunnetti and finally it was investigated by the bond commission appointed by President Sirisena. There is no doubt that the most damage to the UNP was done by the latter because of the details that came to light in the course of the investigation. Leaving aside the final report of the bond commission, the details that came to light during the hearings of the commission alone would suffice to prove that something very untoward had occurred in the issue of Treasury bonds.
Given the fact that the UNP now finds itself surrounded and isolated with the Joint Opposition, the JVP and even the SLFP faction in the government baying for its blood, the only way the UNP can rally its forces, is to take on the President the way S.M. Marikkar did. It should be borne in mind that the UNP is not being assailed just from outside, it is being assailed from within as well because the UNP has not been able to deliver anything worthwhile to its rank and file. The reason for that too is President Sirisena who gave the best portfolios to his catchers in the SLFP leaving the UNP mostly with the leftovers. The UNP rank and file is also acutely aware that Sirisena has given what should rightfully be theirs to the SLFP and that virtually all the woes that the UNP faces today can be traced directly back to Sirisena. So criticism of the President resonates well within the UNP.
If the entire UNP rounded off against the President, expressing in public what they now only utter under their breath, the UNP voter may rise once again to defend the party. We saw the manner in which the UNP rallied to defend the party when Chandrika Kumaratunga seized control of the finance, defence and media ministries in November 2003. But the question is whether Ranil Wickremesinghe has the guts to take on Sirisena in that manner. Last Tuesday, the President’s antics in Cabinet may also have been meant to show the UNP that they needed him more than he needed them, because he was constitutionally the head of the government and head of the Cabinet and the government could not be run without him. Though he wanted the UNP parliamentarians and ministers to stop criticizing him, he himself did not feel under any obligation to stop criticizing the UNP – which amply illustrates how lopsided this relationship is.
After the showdown in Cabinet, Sirisena addressed a meeting in Elpitiya where he once again made barely veiled references to the UNP and its ‘thieving proclivities’. On Friday, Sirisena lashed out at the UNP once again in Moneragala. Though he did not mention the UNP by name during these outbursts there was no doubt at all that he was referring to the UNP. However the response of the Prime Minister to all this was to convene the working committee and to advice UNP Ministers and MPs not to criticize the president. He had also apparently asked S.M. Marikkar to apologize to the President.
Sometime after the parliamentary election of August 2015, during the long post-election standoff that ensured between the UNP and the SLFP without being able to agree on the ministries to be allocated to each party, I participated in a talk show on Sirasa with S.M. Marikkar. When asked by the moderator what my take was on the absence of a government a month after the elections, I told him that Chandrika Kumaratunga won 105 seats in 1994 and formed a government, the UNP won 109 seats in 2001 and formed a government with President Chandrika Kumaratunga even handing over the defence ministry to the new government and since the UNP has won 106 seats at the parliamentary elections, they should be allowed to form a government. If the government so formed wishes to share some ministries with members of the SLFP, that should happen entirely at the discretion of the UNP.
One would think that a UNP parliamentarian would wholeheartedly agree with such a position but those were the heady early days of the yahapalana government and Marikkar opposed that view and said that since the UNP has not got a clear majority in parliament the President had the right to form a government. When I asked him about the precedents set in 1994, 2001 and 2004 Marikkar said that the earlier precedent was wrong and that just because the wrong practice had been followed in the past, that did not mean that it had to be repeated. This was a dangerous statement to make. Under the proportional representation system, it’s very seldom that any party can get a clear majority in parliament. Except for the parliamentary election of 1989 when the UNP won 125 seats, and at the 2010 parliamentary election when the UPFA got over 140 seats, no party has ever got a clear majority in parliament.
At the parliamentary elections of 1994, 2001, 2004, even though changes of the government took place, the party forming the government did not have a clear majority. In such circumstances, for a UNP member of parliament to justify Sirisena’s departure from past practice was foolhardy in the extreme. The UNP is now reaping the fruits of such folly.
Who has the upper hand, MS or RW?
There are two ways of looking at this. On the one hand, one school of thought may say that the UNP’s options are limited. They are now facing a crucial election and there is the possibility that the UNP rank and file may get even more demoralized than they are now, if the government shows any signs of breaking down and that may lead to a disastrous performance at the local government elections. Those in such a frame of mind may feel that the UNP is not on a strong wicket at this moment and the best option would be to keep one’s head low and hope for the best.
However, that is not the whole picture. The UNP has 106 seats in parliament and the President cannot dissolve parliament until four and a half years have lapsed after the last election which means that Sirisena cannot dissolve parliament until after February 2020. Due to the Supreme Court determination that Sirisena’s term ends in five years, the next presidential election will have to be held before 9 December 2019 which means that Sirisena will not be able to dissolve parliament until he himself has to face the next presidential election. Even though the UNP is short of a few seats to be able to form a government on its own, they have a good chance of being able to form a minority government with the help of the TNA which has a good rapport with the UNP and will not allow a UNP government to be defeated if they can help it.
The likelihood is that the UNP would not need to form a minority government because they should be able to find a few politicians from within the SLFP group in parliament who would not see a future for themselves in the SLFP beyond Sirisena’s Presidency so as to be able to make up the shortfall to form a government. The UNP is vulnerable to some extent because the minority parties led by Rauff Hakeem, Rishard Bathiudeen, Mano Ganesan and Palani Digambaram all contested under the UNP banner at the August 2015 parliamentary election and hence about 16 of the UNP’s 106 MPs belong to these minority parties which theoretically could hitch their wagon to some other party. However even if all the minority parties decamp from the UNP, the only side they can join is the pro-Sirisena SLFP group which has only around 40 MPs and cannot form a government even if all minority party MPs join them.
Since it is very unlikely that the Joint Opposition and the Sirisena group will ever get together to form a government under Sirisena, the UNP is actually in quite a strong position and can in fact challenge Sirisena is they so wish. What prevents them from doing so is plain pusillanimity. In contrast to the UNP, President Sirisena is proving himself to be adept at brinksmanship. When he walked out of the Cabinet meeting last week, if they acted resolutely the UNP could have turned Sirisena into a lame duck president by forming a government on their own. If they showed Sirisena a majority in parliament, he would have no option but to swear in a new government. He was taking a risk by confronting the UNP head on in that manner. Yet through experience he probably knew that the UNP would never take him on but would wilt when confronted.
The SLFP half of the government has by now developed a barely disguised contempt for the UNP. Minister John Seneviratne said recently that the UNP’s economic management had been disastrous for the country. In the old days, all SLFPers used to think that the UNP was inherently better at managing the economy than them. All that now lies in tatters. If Ranil Wickremesinghe was to stand his ground he should have done so back in 2015 after the parliamentary election when the two parties were haggling over who should get what ministry. In that tussle, Prime Minister Wickremesinghe failed miserably and Sirisena got all the best ministries while the UNP got the leftovers.
Who owes whom?
At that parliamentary election, it has to be stated that President Sirisena did do the UNP some significant favours. For example, he dissolved parliament just in time to prevent D.E.W.Gunasekera’s COPE committee report from being tabled in parliament. Then during the election campaign, he threw a spanner in the works of the Mahinda Rajapaksa led UPFA campaign by stating in writing that he will not appoint Mahinda Rajapaksa as the prime minister even if the latter won the election, and ensuring the defeat of the UPFA through a political coup by sacking the general secretaries of the SLFP and the UPFA and replacing them with his own loyalists just 48 hours before the poll. Having done those favours for the UNP, he extracted his pound of flesh after the election by taking the best ministries for his own catchers.
This has now become almost a conscious strategy on the part of Sirisena – to do the UNP a favour and extract a huge price in exchange. The most recent favour he did was to water down his statement on the bond commission report and to send it off to the Attorney General’s department for further action. As Ranil Wickremsinghe was later to say, he too had sent Sunil Handunnetti’s COPE report on the bond scam to the AG’s Dept., one year earlier. Last Friday, JVP parliamentarian Handunnetti himself was saying that if the AG took no further action on the findings of COPE, then there is little chance of any action being taken regarding the bond commission report. In the meantime, the Joint Opposition claims that over 100 pages are missing from the bond commission report which was sent to parliament.
Thus, it seems to be the case that Ven. Bellanwila Wimalaratana Anunayake thera’s cynical comment that commissions are appointed only when something has to be shoved under the carpet, has after ten months of sound, fury and sensational headlines, finally proved to be correct. So even though President Sirisena has done the UNP some favours, the problem is in the price he extracts for those favours. Having helped shove the bond commission report under the carpet, President Sirisena expects the UNP to keep quiet when he and the SLFP goes throughout the country accusing the UNP of being the thieves who cleaned out the central bank. While the UNP can claim that it is they who made him President by providing over two thirds of the votes to get him elected, the latter can in turn say that it was he who made Ranil Wickremesinghe the prime Minister in a situation where he had only 46 MPs and also ensured the victory of the UNP at the 2015 parliamentary election. So in Sirisena’s own mind he may be feeling that he has already discharged his debt to the UNP and that the UNP was now indebted to him!