Aftermath of a political coup

Along with the Supreme Court (SC) order to quash the proclamation of the President to dissolve the Parliament, and the declaration that the said proclamation was null and void, the coup launched by the President to forcibly acquire State power was defeated. 

On 26 October, as the Head of UPFA he withdrew the support of UPFA to the Government. Within hours he removed the incumbent Prime Minister (PM) who commanded the confidence of the Parliament, for which he was not empowered by the Constitution, and this act was challenged at the SC. 

Subsequently he appointed a PM. Then he prorogued the Parliament on the following day 27 October and the date the Parliament was to be reconvened was fixed on 16 November. His supporters started to speak to the parliamentarians of other parties to get the support of them. It was revealed that the President himself has spoken to UNP MP Range Bandara. President advanced the convening date of the Parliament to 14 November subsequently.

The Speaker who earlier said that he will be making seating arrangements in the Parliament according to the new appointments, declared on 5 November that he would follow the status quo at 26 October until such time the new PM shows that he is having majority support of the Parliament. The Speaker came to this conclusion after he was convinced that the new PM did not have the confidence of the Parliament. 

Having realised the same, the President publicly declared that he had more trumps. Thereafter, rather than correcting his mistake, if it was a mistake, he dissolved the Parliament on 9 November and went on to fix the General Election on 5 January. 

The Supreme Court issued an interim order on 13 November suspending the gazette issued on dissolution of Parliament. On the following day Parliament met and a no confidence motion was passed against the appointed PM. The process adapted was perfectly in order since suspension of Standing Orders was approved by the majority of Parliament. By that act it was evident that the appointed PM did not have the confidence of the majority. 

The voting was disrupted by the supporters of the appointed PM and the Speaker was compelled to decide on the voices of the members that the no confidence motion was passed, which is a process accepted in parliamentary procedure. 

The Speaker announced in Parliament on 15 November that based on the motion passed in Parliament on the previous day and based on the Constitution, the appointed PM could not hold the office any more. The President and the appointed PM refused to accept this position, creating a major tussle between the Legislature and the Executive. However, Parliament passed several other no confidence motions against the appointed PM. 

On 26 November, 122 Members of Parliament, which is clearly the majority of the Parliament, requested the Appeal Court to issue a quo warranto prohibiting the appointed PM and the cabinet of ministers to function as the PM and the ministers. On 3 December, the Appeal Court issued an interim order prohibiting the appointed PM and the ministers to function, leaving the country with no government. Yet the President did not take any steps to appoint a PM who commands the confidence of the Parliament and the appointed PM did not resign. 

On 12 December, Parliament passed a motion of confidence on the PM who was removed by the President. The SC comprising of seven Judges unanimously decided on 13 December that the decision to dissolve the Parliament was against the Constitution. The appointed PM resigned on 15 December although he was already removed and the President reinstated the dismissed PM on 16 December.

Considering this process, it is evident that it was a mission launched by Maithripala Sirisena and Mahinda Rajapaksa to grab the power of the State forcibly and unconstitutionally. It was reported in the print media in detail how Rajapaksa tried to stay in power after he was defeated in the Presidential election held on 8 January 2015 with the support of the then Chief Justice. It was averted by the then Attorney General, Army Commander and the Inspector General of Police. 

Therefore, it is pertinent to examine the behaviour of the Government officials and the holders of important portfolios during this unprecedented act of breach of law of the country by the persons in highest echelons which was a blatant hit to the longstanding democratic procedures and values of the country. One can say that it is damn shame to be a citizen of this country. However, we should be proud that we were able to resolve the issue peacefully although it was prolonged over 51 long days.

Attorney General

In Section 32 (1) of the Administration of Justice Law No. 44 of 1973, the duty of Attorney General (AG) was stated as follows. “It shall be the duty of the Attorney-General to represent the Republic of Sri Lanka in courts established under this Law, to give advice to the Government of Sri Lanka upon all legal matters, and to discharge the functions conferred on him by or under this or any other written law.”

The President as well as the Legislature are integral parts of the Republic. Article 33A of the Constitution is as follows: “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.”

Therefore, the AG should represent the Republic which is comprising of the President as well as the Legislature. No one can conclude that the President is above the Legislature. It can be the other way around based on the Article 33A.

Unlike the President, the Speaker can refer to the SC only the matters pertaining to the impeachment of the President (Article 129(2)).

When the Speaker requested the AG to give an opinion of the constitutionality of the removal of the PM by the President on 26 October, he stated the following on 31 October: “Having regard to the role of the Attorney General under the Constitution, I am of the view that expressing an opinion on the said questions would be deemed inappropriate.”

When applications filed under Article 126 challenging the act of the President to dissolve the Parliament, the respondent was AG as per Article 35(1) of the Constitution. Therefore, he had to defend himself and also the President. The question is that if he has advised the President right throughout this illegitimate process, should he be removed from the office since the President is vulnerable to be impeached for intentional violation of the Constitution under Article 38(2)(a)(i)? 

In a dispute between the President and the Legislature, the AG is compelled to take the side of the President according to the Constitution, but if he can see very clearly that the act of the President is wrong, can he remain neutral or not defend the President in court? If so, who would represent the President in court?

These questions are appropriate since in a recent speech the President has stated that he is not a lawyer and did all these activities in good faith and also several prominent lawyers made representations justifying his actions. Where does the AG stand?

It should be pertinent to mention here that if the President so wished he could have consulted the Supreme Court under Article 129 whether the removal of the Prime Minister and dissolution of the Parliament were in accordance with the Constitution. It would have been a matter of a few days since he could have specified the number of days. He did not do so because of his ulterior motives. He did not act in good faith, contrary to what he has stated.

Chairman, Elections Commission

In August 1998, elections of five provincial councils were arranged and postal voting was cancelled by the Elections Commissioner without a valid reason and the then President declared a state of Emergency on the following day, thereby making it impossible to hold the elections.

In the judgement of a Fundamental Rights case, Karunathilaka vs. Dayananda Dissanayake, a landmark judgment was given by Justice Mark Fernando interpreting the presidential immunity. Then Commissioner was found fault. 

Ratnajeevan Hoole, Commissioner of the Election Commission, stated in his petition to the SC that all three commissioners were agreed that the order of the President was not legal. But the Elections Commission did not want to go to the Supreme Court. This means that if anyone else did not challenge the action of the President, the Election Commission would go ahead with the illegal election. 

This non-action of the Election Commission goes against the fourth Nuremburg principle. “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” 

CJ H.N.J. Perera stated as follows in his judgement declaring the proclamation of the President was null and void: “It has been said by some of the added Respondents that refusing the Petitioners’ applications will enable a General Election to be held in pursuance of the Proclamation marked and, therefore, justified because it will give effect to the franchise of the people. That submission is not correct. Giving effect to the franchise of the people is not achieved by the Court permitting a General Election held consequent to a dissolution of Parliament which has been effected contrary to the provision of the Constitution. Such a General Election will be unlawfully held and its result will be open to question. A General Election will be valid only if it is lawfully held. Thus, a General Election held consequent to a dissolution of Parliament which has been done contrary to the provisions of the Constitution will not be a true exercise of the franchise of the people.

“In any event, it appears to me that, there is ample provision in the second paragraph of Article 70 (1) for Parliament, which is under a duty to act in accordance with the will of people, to take steps to have a lawful General Election where it considers it necessary to do so.”

Face-saving for the Election Commission was done by Commissioner Ratnajeevan Hoole. People should rise to the occasion rather than talking big.

Speaker

The Speaker has played a decisive role on behalf of democracy. It is not his responsibility to accept or reject a government. However, in a decisive moment when a coup is in operation and the leader of the coup is none other than the President of the country, it is mandatory that he has to move out of the traditional role of the Speaker and stand for the democracy of the country. 

The Speaker represents the majority of the Parliament. The moment he realised where the majority was, he started defending the majority, which was his duty. That was his U-turn alleged by his opponents.

Thought leaders

Since this is a legal issue, opinion of the persons like former Bar Association President Wijeyadasa Rajapakshe PC, former Chief Justice Sarath N. Silva PC and former University of Colombo Professor of Law G.L. Peiris matters. People tend to think that they tell the truth. Because of the wrong interpretations they gave, the public was misled. 

The Supreme Court has given valid answers to the points raised by all of them. It looks like none of them advised the President to get the opinion of the Supreme Court under Article 129. The mentality of Sarath N. Silva can be understood by reading between the lines of the following which was part of his judgment limiting the term of then President Chandrika Kumaratunga in 2005:

“The contorted formula could at first blush lead to a date in the succeeding year. Perhaps the draftsman succeeded to the extent and the then incumbent President availed of it by ceremonially commencing his term of office on 4 February 1983 in the grandeur of the celebrations to commemorate the 35th year of the country gaining independence, an event hailed at that time as the dawn of a ‘golden era.’ But the hand that guided the draftsman also included the words ‘whichever date is earlier’ at the end of the sub-paragraph, on a proper interpretation of which, the provision could be brought in accord with the firm moorings of the Constitution.”

MPs guided by their leaders showed to what extent they respect democracy and rule of law.

General public

People by and large divided themselves based on their political affiliations rather than respecting the rule of law. If Rajapaksa knew this he would have stayed somehow after the defeat of 8 January 2015. Different theories were brought in to support such political affiliations, not the rule of law. 

This tendency shows how difficult it would be to have a political solution for the ethnically-divided Sri Lanka unless their leaders support such a solution. Leaders also depend on the votes of the collectivist public. Sri Lanka should resolve its divisions from the top in order to have a peaceful environment.