THE CONSTITUTIONAL SCENARIOS IN THE AFTERMATH OF THE PRESIDENTIAL ELECTION | Sunday Observer

THE CONSTITUTIONAL SCENARIOS IN THE AFTERMATH OF THE PRESIDENTIAL ELECTION

Members of the Sri Lankan parliament shout slogans in support of then ousted prime minister Ranil Wickremesinghe during a parliament session on November 14, 2018. Pic courtesy Lakruwan Wanniarachchi/AFP
Members of the Sri Lankan parliament shout slogans in support of then ousted prime minister Ranil Wickremesinghe during a parliament session on November 14, 2018. Pic courtesy Lakruwan Wanniarachchi/AFP

By the early hours of Sunday 17 November 2019, Sri Lanka will know its next President. Barring an unlikely upset in the form of a need for a second preference count for the first time in history, the new President of the Republic will be either Sajith Premadasa or Gotabaya Rajapaksa. This will, however, be an unusual presidential transition.

Previously, either the incumbent President has won re-election, or the ruling party’s effective deputy leader, the Prime Minister, has succeeded the President. Except for the highly unusual situation of 2015, the only exception was in 1994, when neither President D.B. Wijetunga nor Prime Minister Ranil Wickremesinghe were the ruling party’s presidential candidates. In that election, the presidency was lost by the UNPfor the first time under the 1978 Constitution, when the Chief Minister of the Western Province and leader of the SLFP-led People’s Alliance, Chandrika Kumaratunga, became Prime Minister after the parliamentary elections in August and then was elected President in November.

In 2015, the presidency was won against the odds by the common candidate of an opposition that was more a reform movement than a party or a coalition. The special nature of this mandate – and the political momentum it created –was what enabled President Maithripala Sirisena to not only constitute a minority government with Ranil Wickremesinghe as Prime Minister, but also to secure near-unanimity in Parliament to enact the far-reaching Nineteenth Amendment in May2015.

However, both 1994 and 2015 are only partial precedents for the scenario awaiting us on 17 November, because the Constitution has fundamentally changed since then. After the Nineteenth Amendment, the position of both Prime Minister as well as Parliament in relation to the President has changed. The newly elected Presidentsin 1994 and January 2015 possessed legal powers – and therefore political options – that the newly elected President in 2019 will not have.

Below I give consideration to how the new constitutional framework will impact the options available to the new Presidentin the immediate post-election context, in the two scenarios of either a Premadasa or a Rajapaksa presidency. The main concern here is to elucidate the applicable constitutional provisions, and not the political tactics or strategies that might be adopted by either of the two individuals who would be President.

This discussion takes place in the light of the announcement on 30 October by current Prime Minister Wickremesinghe that he will continue to hold office after the presidential election. By this he has signified he does not intend to resign upon the election of a new President – or at least, on the election of Premadasa. The presidential election, or the assumption of office by a new President, in and by themselves, have no legal effect on the continuation in office of Wickremesinghe. As such, until such time as Wickremesinghe can be legally replaced, any new administration headed by either Premadasa or Rajapaksa will be one that has to include him as Prime Minister.

This model of shared executive power reflects the essential logic of the semi-presidential system we now have. But it is not something we are used to, because prior to the Nineteenth Amendment, the election of a new President brought in a totally fresh administration, and whether or not the serving Prime Minister wished to continue in office was a legally as well as a politically irrelevant consideration.

Now, however, the Prime Minister cannot be dismissed or replaced by the President, so long as the Prime Minister enjoys the confidence of Parliament. The Prime Minister loses office only if the government as a whole loses the confidence of Parliament, or by resignation, by death, or by the Prime Minister ceasing to be a Member of Parliament. The dismissal of the Prime Minister through a loss of confidence of Parliament can happen on a vote of no confidence in the government, on the government being defeated on its statement of policy, and on the government losing the vote on the budget. In all three cases, confidence is won or lost by the whole government, i.e., the Cabinet.

It is important to note that the Constitution does not contemplate the dismissal of the Prime Minister on a vote of no confidence on him alone. And because the circumstances in which the Prime Minister loses office are expressly specified in the Constitution in the ways outlined above, and a personal vote of no confidence is not mentioned, it must be assumed that the Constitution does not normally permit such an eventuality.

Moreover, the President can appoint (and dismiss) Cabinet and other Ministers only on the advice of the Prime Minister. If Wickremesinghe continues to enjoy the confidence of Parliament, which, all things being equal, he will on the date of election of the new President, then the latter has to act on his advice in forming his government. Any temptation to side-line Wickremesinghe by not appointing a Cabinet in the short-term is also foreclosed, not only because the current Cabinet legally continues, but also because the President no longer has the power to assign any ministries to himself, and thus no means of raising funds through the sanction of Parliament, and as such, no means of commencing his administration.

That is the constitutional context that would exist when either Premadasa or Rajapaksa is declared the winner of the presidential election on 17 November. This context is crisis-prone, unless the individuals concerned show maturity, leadership, and above all, knowledge and respect for the Constitution.

A Premadasa Presidency

President Sajith Premadasa will be greeted in office by Prime Minister Ranil Wickremesinghe. Wickremesinghe can resign at this point, opening the way for Premadasa to appoint another MP as Prime Minister. This could be any MP that was part of his presidential campaign coalition, although it is most likely to be a core UNP member.

Alternatively, through internal UNP procedures, Wickremesinghe may be replaced as party leader, and in this way, he would in effect lose the support of the MPs that currently constitute the main basis of the parliamentary confidence that keeps him in office. This would again enable President Premadasa to appoint someone else as Prime Minister. If Wickremesinghe refuses to resign and Premadasa wishes to replace him immediately, then this would be politically the most plausible course of action that is consistent with the Constitution. The new President would be at the zenith of his power fresh from an election victory, and the party is likely to be at his beck and call.

If the immediate replacement of Wickremesinghe is not an option for whatever reason, Premadasa and Wickremesinghe can agree to form an administration together. This can be either a short-term arrangement until such time as parliamentary elections are held, or a longer-term partnership. If the opposition agrees, then the needed two-thirds majority could be secured for an early dissolution of Parliament on a date between November 2019 and February 2020. If the two-thirds majority cannot be obtained, or an early dissolution is not sought by the new Premadasa-Wickremesinghe government, then President Premadasa can on his own volition dissolve Parliament after February. If he continues to wish to replace Wickremesinghe, the first opportunity for Premadasa will then be after a parliamentary election.

These would be the orderly options consistent with the requirements of the Constitution, in the event of the UNP-led coalition winning the presidential election. However, it could be that these routes are not followed. If there is rancour between Premadasa and Wickremesinghe, and the latter manages to hold on to the reins of the party and allies (and thereby the confidence of Parliament through the majority he currently enjoys) even in the context of the former having won the election, then a deadlock emerges.

Because he can no longer dismiss the Prime Minister, President Premadasa would have to engineer a vote of no confidence against a UNP-led government in order to get rid of Wickremesinghe. This would not only be highly embarrassing and constitutionally awkward, but also cause deep and possibly long-term damage to his own party at the very inception of the new President’s term. Other parties that are allies in the coalition would also sense the weaknesses in the UNP, and this would set undesirable and path dependent precedents for the future.

However, all of this assumes that Wickremesinghe would continue to be able to command the confidence of Parliament after a Premadasa win in the presidential election. This, of course, could be highly unlikely, for the same reasons that he was not able to prevent Premadasa securing the presidential nomination of the UNP earlier in the year. The UNP would likely rally around the new President, other parties in the coalition would already have nailed their ministerial futures to the fortunes of Premadasa, and Wickremesinghe would overnight have lost all or most of his bargaining chips. This would become a compelling scenario for Wickremesinghe to do the decent thing (for himself, if no one else) and resign. And yet, militating against this outcome is Wickremesinghe’s record of survival, and predictions of the end of his political career have been disproved more than once.

A Rajapaksa Presidency

President Gotabaya Rajapaksa’s options would be similar, but not identical, to the scenario faced by a President Premadasa. It is common knowledge that he would appoint Mahinda Rajapaksa MP as his Prime Minister,the entire SLPP campaign being based on the latter’s continuing party leadership. But unless he wants to repeat the unconstitutional antics of President Sirisena at this time last year at the very inception of his administration, Gotabaya Rajapaksa as President would first have to legally get rid of Wickremesinghe. He can ask Wickremesinghe to resign, and then appoint Mahinda Rajapaksa as the Prime Minister of a minority government (similar to the way Sirisena appointed Wickremesinghe in 2015), until parliamentary elections are held.

But if Wickremesinghe refuses, and manages to retain the confidence of Parliament (which is more likely in this scenario given that his party would close ranks around him after Premadasa has been defeated), then President Rajapaksa would either have to govern with Wickremesinghe and his Cabinet (with the possible appointment of some SLPP members as Ministers) in the short-term until a dissolution, or get Wickremesinghe voted out of confidence. For this, the SLPP needs a parliamentary majority, which it does not yethave.

It is of course not inconceivable that such a majority could be constructed by realignments of minority parties and by inducing crossovers on the back of the presidential election victory. It is also possible that, under a Rajapaksa presidency,legal formalities will be dispensed with in favour of a culture of politics and style of governing that negate limitations on power imposed by the Constitution. A whole political atmosphere can be created that neutralises checks and balances. All these are empirically demonstrable features of Rajapaksa statecraft. In this scenario, therefore, both the letter and the spirit of the Constitution becomesubordinate to the political réalité and, as a result, more difficult to predict.

Conclusion

The foregoing observations outline the two main scenarios that will emerge after the presidential election. For the sake of Sri Lanka’s constitutional democracy, it is critical that political actors conform to the Constitution, especially when the euphoria of victory could tempt the President-elect to ignore legal formalities.

In either of the scenarios, the odds seem to be stacked in favour of the political bloc that is able to summon up political muscle, and against the options that would respect the formal procedures set down in the Constitution. The reason is that,while the Constitution now embodies an institutional model of executive power-sharing, our winner-takes-all political culture may not yet be ready to embrace the implications of that framework.

The coup crisis was precipitated exactly a year ago precisely because of the lack of sync between institutions and culture. While on that occasion fortuitouslyconstitutionalism prevailed against authoritarianism, how Sri Lanka handles the challenges posed by the crucial presidential transition in November 2019, would determine the future trajectory of constitutional development. Whether that would be in the direction of democratic consolidation or democratic regression is the question. 

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