Two Prime Ministers: The constitutional crisis in Sri Lanka

Published

Credit: Flickr / Mahinda Rajapaksa

Kieron Weatherill
Writer

On 26 October, President Maithripala Sirisena of Sri Lanka sacked the sitting prime minister Ranil Wickremasinghe and appointed former President Mahinda Rajapaksa as the new PM. Wickremesinghe immediately stated that he retained “the confidence of the house” and that he was still the PM according to the constitution. He also refused to leave Temple Trees, the official residence of the prime minister of Sri Lanka. President Sirisena responded by cutting Wickremesinghe’s security detail from over 1000 officers to just 10. The Speaker of Parliament, Kaya Jayasuriya, warned that if not solved through proper parliamentary procedures, the crisis risked spilling onto the streets where it would result in a “bloodbath”. The crisis has already taken a life; bodyguards of the former oil minister Aruna Ranatunga fatally shot a protestor who had physically assaulted the minister, in their attempt to prevent the protestor’s entry into the offices.

Mr Wickremasinghe’s claim centred on the 19th Amendment to the constitution of Sri Lanka which was passed in 2015. This amendment limited the powers of the president, specifically removing the president’s ability to dismiss the prime minister. Sirisena’s supporters point out that there is a discrepancy between the Sinhala and English versions of the constitution. The Sinhala version refers at one point to the dissolution of cabinet ministers upon “the removal of the prime minister”. They claim that this means the president has the power to remove the PM. However, there is no longer a provision in the constitution which specifically allows this, and so constitutional law experts have stated that he does not have that right. In an interview with Dr Asanga Welikala, a lecturer in Public Law at the University of Edinburgh, he stated that “the removal of the Prime Minister” in the Sinhala version must be interpreted to mean his removal after a no-confidence motion against the PM has been passed by parliament.

Both sides seemed to agree that the president only had the power to appoint as prime minister the member of parliament who is most likely to command the confidence of parliament in his opinion. Both supposed prime ministers claimed that they alone commanded the confidence of parliament, proclaiming they would prove this when parliament sat. The jostling to gain MP support led to enormous bribes of both money and cabinet positions being offered to support Rajapaksa. Some have claimed that these bribes were funded by China, who support Rajapaksa’s claim due to his prior close relationship with them when he was president. This included the building of a port on Sri Lanka’s coast funded by China due to its strategic location on the sea lines of communication between the Middle East and China, a way for China to secure their continued supply of oil.

It became clear that Rajapaksa would not manage to acquire the numbers to prove his majority in parliament. President Sirisena therefore decided to dissolve the Sri Lankan Parliament, in the hope that a new election would deliver more MPs supporting his preferred prime minister. When dissolving parliament, he also attempted to justify his previous actions regarding the sacking and appointing of the prime minister. He said that there has been “no occasion on which the majority support for a newly appointed prime minister has been tested by vote.” He also specifically noted that when Wickremasinghe was appointed as prime minister “he had the support of a mere 41 members in the Parliament, whereas the sitting prime minister D.M. Jayaratne had the support of 162 members in the parliament”. Dr Welikala notes that this is “disingenuous” because Wickremasinghe was appointed before the 19th Amendment was passed which limited the powers of the president.

Wickremesinghe’s party, the UNP, has called the dissolution illegal and unconstitutional. The 19th amendment to the constitution specifies that the president can only dissolve the parliament after 4 and a half years, or with a vote of parliament and a 2/3rds majority in favour. Dr Welikala agreed with the UNP’s assessment: “If an early election is needed to resolve the crisis then there is a procedure set out in the law and the constitution about how that can be done. And the procedure is that parliament must pass a resolution by a 2/3 majority to call an early election”. He stated that the dissolution was “being done unconstitutionally”. Supporters of President Sirisena claimed he did have the power to dissolve parliament under Article 33 (2) of the constitution. However, this simply gives him the power if the previously mentioned conditions laid out in Article 70 (1) have been met. Foreign diplomats, including the Australian Minister for Foreign Affairs, the US Ambassador to Sri Lanka, the EU External Action Spokesperson, and the Secretary-General of the UN, were also quick to criticise the decision to dissolve parliament and urged the Sri Lankan Government to follow the rule of law.

Immediately after the announcement of the dissolution, Rajapaksa left the Sri Lanka Freedom Party, which Sirisena leads, and joined the Sri Lanka Podjuna Peramuna party, which in the last few years had become the home for Rajapaksa loyalists. There are concerns that he intends to amend the constitution to allow himself to serve a third term as president. He may also attempt to revoke the 19th amendment entirely to remove the limits on presidential powers, potentially allowing him to hold power until his son is able to take over. Many ethnically Tamil Sri Lankans are fearful of a Rajapaksa return due to the massacre of tens of thousands of Tamil civilians that occurred at the end of the Sri Lankan civil war in 2009. Mahinda Rajapaksa was president at the time and his brother was the defence minister. US Ambassador Patricia Butenis wrote in a leaked memo: “responsibility for many of the alleged [war] crimes rests with the country’s senior civilian and military leadership, including President (Rajapaksa) and his brothers”. A return of power to the Rajapaksa’s would not only prevent internal investigations and prosecutions of previous human rights abuses, it would likely mean more would occur.

Several parties brought the dissolution before the Supreme Court claiming it was unconstitutional and on 13 November the Supreme Court issued a stay order, preventing any action on an election until their final decision on 7 December. The Speaker, Kaya Jayasuriya, immediately reconvened Parliament for the following day. A no-confidence motion was filed against Mohinda Rajapaksa but Rajapaksa’s supporting MPs attempted to block a vote. One was held anyway and it passed, with 122 members out of a house of 225 voting for the motion and against Rajapaksa. Rajapaksa and his supporters rejected the outcome of the no-confidence motion, as did President Sirisena. They claimed that the Speaker had violated standing orders and parliamentary procedures, specifically pointing out the taking of the vote by voice, and said it was therefore invalid. Dr Welikala disputed this, stating that the Speaker and the parliament “took the appropriate course of action”. The Speaker wrote to the president and stated that Standing Order 47 (1) allowed him to take the vote by voice, and that the motion had passed.

The day after the no-confidence motion against Mahinda Rajapaksa, he spoke, recognised only as an MP by the Speaker. After he finished, a vote was to be taken on the speech, but Rajapaksa supporting MPs responded with “roars of protest. . . at the prospect of MR’s speech being defeated” according to a New York Times journalist who was present. They then reacted violently to the speaker, throwing waste paper baskets, water bottles, and a copy of the constitution at him. A physical brawl occurred and at one point a butter knife was pulled by a UNP MP. A Rajapaksa supporting MP was hospitalised after he attempted to grab the microphone from the speaker and cut his hand in the process. UNP Minister Harsha de Silva also stated that M. Rajapaksa “force(d) himself on the seat reserved for the PM” and the official UNP twitter stated that the Speaker “is being threatened by MPs loyal to Rajapaksa”.

Later that day, the President again noted his rejection of the no-confidence motion taken on the 14th and requested that a new motion be moved and the vote taken “by name”, instead of by voice as had occurred initially. Dr Welikala said of the President’s request that “accepting the principle of another vote on an amended motion is a mistake: it’s an indirect admission the other (was) flawed, and it’s a constitutionally improper incursion of the presidency into parliament”. Despite this, the speaker and the MPs opposing Rajapaksa agreed to hold another no-confidence motion on the 16th. MP’s supporting Rajapaksa entered Parliament early, then attempted to stop the motion by occupying the Speaker’s chair and breaking his microphone. They also attempted to prevent the bringing in of the Mace, which symbolises the authority of parliament, without which parliament cannot sit. Roughly 30 unarmed police officers escorted the Sergeant at Arms in holding the Mace and a larger number surrounded the Speaker to protect him as he attempted to preside over parliament. Rajapaksa’s MPs threw chilli paste, chairs and books at them. Another no-confidence motion was eventually held, and again it passed. Sirisena once more rejected the result, claiming that proper procedures were not followed.

Where do we go from here? Dr Welikala thinks it is wise to de-escalate the situation by holding a new election. He says “graceful exits are not in the playbook of people like Rajapaksa and Sirisena” and that “unless a way out is made for cornered animals, we can all get killed”.