When Parliament was dissolved with effect from midnight on Friday November 9, the people were given the opportunity to revert to the status quo ante, predating 8 January 2015. On the face of it, this statement may sound curious to some, and perhaps a trifle unclear to others. But yet, most Sri Lankans would rejoice that the people have the right to choose their government as a result of the dissolution, and the numbers at the last LG elections would certainly point to that.
Legal experts have said that the Constitution allows the President to dissolve Parliament under terms of Article 33(2)c, notwithstanding any other Articles. Those who disagree say that the strict interpretation of the Constitution is required under Article 70 (1).
The legal minutiae behind the President’s decision would be clearer as legal minds deconstruct the details in the coming weeks, in the lead up to the election.
It is the veritable back-story behind the dissolution and its legal ramifications that are more pertinent to the issues at hand, that should have an impact on the aforementioned legal aspect as well.
With the passage of time, and in hindsight, there would be a collective national reawakening to the extent of the onslaught on legality, due process and yes — democracy — in the near four year Yahapalana rule. The country has seen nothing as egregious as this attack on good governance, since the grant of independence, and that can be stated with a great sense of responsibility.
A dictatorship was foisted ...
The Wickremesinghe UNP foisted a dictatorship on the country, that unfolded in crystal clear clarity to supporter and dissident alike, except that the two groups reacted differently to the fallout.
That dictatorship essentially sprung from a sense of aloof entitlement harbored by the essentially UNP Yahapalana leadership, that began to take a leaf from the disgraced late US President, Richard Nixon’s madman theory. (This may have been an intentional copycat effort, or maybe it wasn’t, but the UNP leader is known to take some of his lessons from the American political playbook.)
Online, the madman theory is a political theory commonly associated with U.S. PresidentRichard Nixon’s foreign policy. He and his administration tried to make the leaders of hostile Communist Bloc nations think Nixon was irrational and volatile. According to the theory, those leaders would then avoid provoking the United States, fearing an unpredictable American responseApparently, Nixon told his Chief of Staff Haldeman, ‘I call it the Madman Theory, Bob. I want the North Vietnamese to believe I’ve reached the point where I might do anything to stop the war.’
The madman theory of the Yahapalana UNP was a variation. It went on the lines of ‘we will show our power, our might over right, due process, and accountability. This will make the people believe that the laws of us, our men, prevails over the Rule of Law.’
In this way began an assault on legality, due process and parliamentary practice that would have made J R Jaywewardene, notorious for his Machiavellian streak, want to blush.
On Yahapalana day one, on January 9 2015, a Prime Minister was appointed on the strength of a presidential election result, over the head of the incumbent.
It started a process of legal normalization, that justified such appointments, that came back to strike the process’s authors with a sting, but that’s another story.
As stated in these columns last week, the Chief Justice (Mohan Peiris) was removed without so much as a cursory nod to democratic process. This was on the ‘procedural grounds’ that no address to Parliament had been made after impeachment of the Chief Justice, who preceded Justice Peiris.
This procedural skulduggery was invoked to suggest that Mohan Peiris was never a Chief Justice, despite many judicial decisions handed down by him from the Supreme Court Bench. Chief Justice Peiris had moreover, constitutionally taken his oaths as CJ before a President.
This single full-on tackle was a structural assault on the judiciary that was breathtaking in its audacity. It certainly was the Yahapalana madman theory in overdrive — bulldoze, lambaste, have our way, and people will know we are the Law. One by one, the props that held up the edifice of Executive, Legislature and Judiciary were removed, or damaged to the point of being completely ineffectual.
The scale of this assault on legality — essentially Rule of Law — and the fundamentals of democratic process was so all encompassing, and it cast such a wide net in its wake, that future historians would have to attach an appendix listing each separate onslaught, to properly document any historical volume that would record this methodical heist of process.
The list goes on and on. Upwards of twelve defeated candidates that failed at the August 2015 Parliamentary elections were smuggled in through the National List. Franchise and the process of one man one vote had not been made a worse mockery of, even in J R Jayawardene’s time of worst excess.
This was all done on the watch of the Yahapalana UNP, which engineered the National Government, and the so called partnership with the UPFA.
The dominant partner in the so called coalition had its way, and the UPFA played an acquiescent role of the pliant and co-opted also ran.
As stated, the onslaughts on basic norms of governance and legality are too numerous to mention.
But noted above are just two examples of the decapitation of two branches of government, the Judiciary, and the Legislature.
This article will revisit these assaults, and certainly the one that has to be termed the most stomach churning — sick — a betrayal of voter trust that’s the worst in history, the crossover of some 40 MPs, the day after the election.
By now, the reader from Mars, and certainly from say, Indonesia, would have a general idea of what the country went through.
Believe it or not
This history making list does not stand in a vacuum. It delineates the story of how everything including the 19th Amendment should be looked at in any context, legal, political or in-between. The political circumstances in which the 19th Amendment came to be made into law would bear further scrutiny, in a future historical context. But here is one anecdote that would suffice to illuminate at least some of the pertinent aspects.
A Yahapalana apologist, as late as last week, claimed on private television during one of those prime time political chat shows, that the Opposition lent their votes to pass the 19th Amendment ‘due to the fact that the key leaders and their families were threatened with jail sentences, which made them eager to compromise.’
Ripley would say, believe it or not, but this was actually said on prime time TV. On top of dismantling systematically the entire process of governance, a process of blackmail was resorted to, for pushing through a constitutional Amendment that was essentially the fulcrum in the machinery to systematically dismantle institutions through manipulation, and direct attack.
How is this even possible? It should be a subject for a forensic historian of the kind we may have to import for his expertise.
The country is aware that there was a crazed witch hunt for the leadership of the previous administration and family members, after an election campaign that had ‘missing golden horses’ and ‘phantom racing cars’ as its centerpiece. But to acknowledge on public television that there was outright blackmail in order to secure a Constitutional Amendment that sought to secure the Yahapalana regime in power in perpetuity, says much.
It says much because it’s a story in lockstep with the unprecedented assault on democratic institutions, to which your attention has been already drawn.
Structural damage and arm twisting notwithstanding, the 19th Amendment as many other Bills and other legislation passed during the Yahapalana tenure, also had the benefit of outright systemic manipulation at the last legislative level, before being made law.
With regard to several Bills passed in the Yahapalana tenure, the Speaker adopted the madman stance and subverted process with impunity. It is apparent that at the 3rd Reading of several Bills passed, the Original Bill passed at the Second Reading has been totally disregarded with a completely new set of provisions ‘smuggled in’ at the Committee Stage.
Article 82 (1) of the Constitution states: No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.
This provision for the Committee Stage Amendments was ignored with impunity by the Speaker.
Disenfranchised and forgotten
Such onslaughts on judicial review have been reasonably well documented. Taken together with the admission that the 19th Amendment was passed in a process of blackmail, this puts into perspective the circumstances in which the people of this country are forced to revert to the status quo ante with regard to the 19th Amendment, and indeed with regard to an ostensible four and a half year ‘long parliament’ it enables.
However, the Amendment is Law now, or is purported to be despite the circumstances and the nature of the Yahapalana assassination of the rudiments of due process. In such a backdrop, the desire for the people for elections should be treated not just noteworthy, but sacrosanct.
Time and again, the ‘madman’ in the Yahapalana theory trod on people’s basic rights and of course this brings us to the other factor - the serial postponement of elections. Who in this country is unaware of this, with the German and the British Ambassadors both saying that overdue elections are an assault on democratic process?
The above contextualized structural assault on the branches of government — make no mistake, utterly unprecedented in the history of this country and surpassing in its serial nature the worst excesses of the JR regime — makes it imperative that the dissolution of Parliament also be looked at in the context of the grundnorm. The grundnorm is the basic norm that validates a Constitution .
The underlying basis of a legal system is that there is a Rule of Law. But when this exact process of making laws has been subverted, along with elements of the other two branches of government, there is egregious systemic breakdown.
The dissolution of Parliament this week, comes in this context, and the people’s sovereignty being inalienable, there is no palpable choice left other than to refer back to the people on the matter of correcting all of these wrongs that have been done, in their name, by the Yahapalana regime.
To come back to the list of these egregious assaults, the worst of them deals with the matter of crossovers.
Close to a 25 per cent of the people of this country were effectively disenfranchised when the National Government so called, was formed after the August elections, to pursue the UNP agenda of Wickremesinghe, the effective Yahapalana leader. In other words upwards of 25 lakhs, by a reasonable estimate had been disenfranchised the day the MP they voted for, crossed over to a government pursing the very Yahapalana policies they voted vehemently against.
This was an abomination, and the ugliest example of the madman arrogance that basically told the voters, (mind you the day after the elections), that they are nothing. Just nothing, a nullity, a cipher, not of the slightest consequence.
Anyone who points out that the 19th Amendment was passed much before the August election is right, but the point is that in a continuum of madman assaults by the Yahapalana regime, this nadir formed the long line of breaches.
In the overall context of all that has been stated here, and much more, the people have been disenfranchised and bludgeoned by a cabal, which of course, for the uninitiated at least, carried out this blitzkrieg under the name of, of all things ‘Good Governance.’
Comedy aside, the strict constitutional Interpretation that the same Yahapalana cabal and its supporters want with regard to the dissolution of Parliament is a complete nonsense.
If Article 33(2)c of the Constitution states that the president enjoys additional powers of dissolution, despite other laws in the Constitution, that position has to let stand because as the experts say, 33(2)c was introduced due to the fact that there was no Referendum on the issue, as was stipulated by the Supreme Court, for passage through Parliament.
No amount of words can accurately capture the sheer mind-numbing double standard of anyone asking for a verbatim constitutional interpretation of Article 70 (1) on this matter, on the grounds that ‘democracy is being smothered.’
The reverse is the case, as detailed above. Democracy was molested, denuded, and effectively left to die. This dissolution is the kiss of life.
To underscore, a course correction in the nature of dissolving Parliament is the only corrective that has some hope of redressing the harm done to a majority of voters, and their right to representation, franchise, etc.,
A word could be said about the Right to Information, a Yahapalana engineered law that had a positive effect on the polity. But, it was probably the needed fig leaf that covered what has otherwise been the most abysmal record for systemic suppression, for any party since independence.
Anyone who points to a Constitutional flaw of special proportions in the dissolution is not only being monumentally hypocritical in his selectivity, but is also most certainly not a democrat.
A Democrat will see that there can be no situation where the abandonment of elections (or their serial postponement) is deemed democratic, when also the holding of elections is deemed undemocratic!. Anyone who takes up a position on the lines of a democratic deficit against the dissolution of Parliament should of course be taking out the dunce cap, in the context of all of the foregoing.
Who can be against this?
Quite apart from these aspects that hinge on governance, going to the people is additionally salutary, under the exceptional circumstances that a government has been defeated comprehensively in a local election that was fought as a Referendum on its rule.
There are many other reasons that the people want the polls, and not the least of it of course is the ailing economy. Even the New York Times states, in a post-dissolution article yesterday, that ‘while Mr. Rajapaksa’s party, the Sri Lanka People’s Front, does not have deep support in Parliament, it performed very well in local elections in February. It would most likely win any parliamentary election held now amid popular discontent with the struggling Sri Lankan economy.’
An election that the opponents of Yahapalana ‘would win’ signals the appetite for the egregious Yahapalanites to be out of power, and even if that’s perchance not conceded, it indicates the desire for people to vote to decide who shall govern them.
That should put it beyond dispute that this election is not undemocratic by any stretch, except by the standpoint of the desire of the Yahapalana cabal and its supporters to remain in power, hanging on to a constitutional construct despite the palpable change in the Grundnorm, as alluded to above.
Let sanity prevail, and hopefully it will.
Despite all the prejudices of constitutional purists masquerading as democrats to cling on to power, it is clear as night following day that a dissolution of Parliament was by far the best solution to be had under present circumstances, to preserve Sri Lankan democracy that was systematically taken apart, in the last three and a half years.