Friday Forum on constitutional governance in a Parliamentary democracy

President Maithripala Sirisena has purported to govern this country in the last week by presidential decree, without explaining to the nation how he placed a government in office on 26 October without summoning Parliament. The Constitution does not permit him to administer a government of his choosing without fulfilling his responsibility to Parliament. 

Article 33A of the Constitution states very clearly that the president “shall be responsible to Parliament for the due exercise, performance and discharge of his powers duties and functions under the Constitution”. It is very clear that despite any legalistic and technical arguments, the basic principles are that the president is governed by the Constitution and must act with accountability to Parliament.  His prorogation of Parliament is unconstitutional and flouts this basic principle of governance in a Parliamentary democracy. 

It was earlier announced in the media that the President had agreed to convene Parliament on 7 November. Now a gazette notification has been issued indicating that Parliament will meet on 14 November, two days before the prorogation expires.  This postponement is contrary to his obligations to respect and safeguard the Constitution and is a violation of the rights of the people. Presidential power is subject to the concept of the sovereignty of the people and the president’s obligations under Article 33A. 

When Parliament cannot meet until 14 November, it has no opportunity to discuss the current crisis in governance or to facilitate the formation of a lawful government.  The President  has appointed an ‘interim’ government, replacing at his will and pleasure, a Prime Minister, a Cabinet, senior heads of State institutions and public servants. 

The newly-appointed persons have taken office, accepting the President’s argument that he is exercising lawful powers under the Constitution. This is despite a powerful alternative opinion that has challenged the legality of his action. Unfortunately for the country these opinions expressed by diverse individuals and groups, especially lawyers, supporting or challenging him, are now being perceived as partisan. 

We as citizens must recognise the importance of Article 33A of the Constitution. The President must therefore summon Parliament immediately and not wait till 14 November. It is Parliament that must decide whether he has acted lawfully from 26 October, and clarify the Prime Minister and Government that comes into office.  The only other alternative is for the President to go before the Supreme Court, the third agency that represents the sovereignty of the people under Article 4 of the Constitution, and seek a clarification on the lawfulness of his actions in this time of crisis.

In this critical time of national crisis day by day there are rumours of Members of Parliament crossing from one party to another for large sums of money and the plums of office. Shamelessly, political leaders supporting the President’s action are claiming that they have obtained the magic numbers to form a government. The fact that corruption is entrenched in the body politic should not deter us as citizens from expressing our disgust at these acts of treachery to the voters, at a time when the country is facing an unprecedented political crisis in governance. 

We remind the President that it was he who promised to introduce limitations on presidential powers under our Constitution. When the 19th Amendment was passed in Parliament, it was in response to the persistent public demand to reduce presidential powers. Therefore the 19th Amendment limited the presidential term of office, established a Constitutional Council and independent commissions, and repealed the discretionary power of the president to remove the Prime Minister. It is a shameless disregard of this political mandate given to him by the people, for the President, some ministers, political leaders and members of Parliament to use technical legal arguments to undermine the fundamental constitutional changes introduced by the 19th Amendment.  

There are several MPs and holders of ministerial office who were rejected by voters but were sent to Parliament by the President on the National List. They joined the President in passing the 19th Amendment.  They have now become spokesmen for the authoritarian exercise of this same presidential power. We must not permit such politicians, or a president who does not exercise his powers with accountability to Parliament, to be considered the saviours of the nation. We must not be misled by the money being poured into public cut-outs which seek to make heroes out of individuals who have subverted Parliamentary democracy.

The citizens of this country have a right to ask that Parliament is immediately convened in a conflict free peaceful environment where all members behave with dignity and accountability to electors who voted them in to office. If the government that can lawfully govern this country and its Prime Minister cannot be identified, we call for a dissolution of Parliament under the exceptional provisions in Article 70 so that the people can decide for themselves who they will place in office.  An interim government cannot seek to administer the country without a vote in Parliament or the President asking for an interpretation from the Supreme Court under Article 129(1). 

History has shown that would-be dictators take office promising stability and the well-being of the country.  History has also demonstrated over and over again that once in office they consolidate their grip on power and suppress the rights of the people. President Maithripala Sirisena came into office in 2015 on a majority vote where the people expressed confidence and a deep desire for accountable democratic governance. Let him not go down in our history as the person who trampled on parliamentary democracy and the rights of the people.

Prof. Savitri Goonesekere, Prof. Camena Guneratne

For and on behalf of:

Sanjayan Rajasingham, Dr. Dinesha Samararatne, Priyantha Gamage, Faiz-ur Rahman, Dr. Upatissa Pethiyagoda, Prof. Ranjini Obeyesekere, Prof. Gananath Obeyesekere, Prof. Arjuna Aluwihare,

Bishop Duleep de Chickera, Dr. A.C. Visvalingam, Chandra Jayaratne, Daneshan Casie Chetty, Tissa Jayatilaka, Prashan de Visser, Pulasthi Hewamanna, S.C.C. Elankovan and Dhammapala Wijayanandana.

(The Friday Forum is an informal group of concerned citizens pledged to uphold norms of democracy, good governance, the rule of law, human rights, media freedom and tolerance in our pluralist society.)