Mea culpa! Step back to move forward? (Confessions of a Constitution reader...)

POWER: plays – Pic by Shehan Gunasekara

I am not often wrong. But when I err, I sometimes do so in spades. Sorry, but Homer nodded in his last column on many legal grounds. However, a ‘Mistake’ does not become a ‘Sin’ until or unless one refuses to acknowledge and rectify albeit inadvertent transgression. Therefore, with due apologies to my legal-eagle critics, let me at least attempt to set myself right and also set the record straight.

In my column published on Wednesday 31 October, I made several erroneous assertions based on an equal number of faulty assumptions:

For one, “that after 2015’s 19th Amendment, the prime minister can only cease to hold office by death, resignation, ceasing to be a member of parliament; or if the government as a whole has lost the confidence of parliament by dint of being defeated post the throne speech, budget, or a vote of no-confidence [Articles 46(2) and 48]; and that the president has been too literal in his interpretation of Article 42(4); that he has the right to appoint as PM whoever ‘in his opinion’ is ‘likely to command the confidence’ of the house”. This however has to do with the appointment of a premier and I appear to have missed that it doesn’t necessarily validate President Maithripala Sirisena’s unconstitutional removal of former Prime Minister Ranil Wickremesinghe.

Then again, “that Article 43(3) gives the president the authority to change the cabinet of ministers, and that the sitting prime minister ceases to function when the cabinet of ministers have been removed according to Article 46(2); and also that the president’s unilateral abrogation of the UNF-UPFA pact effectively terminated this cabinet and therefore its premier’s tenure”. 

But the tenure or termination of the National Unity Government (NUG) is contingent on parliament, so its term can’t lapse until the House says so. There is, I am told, a specific provision for its continuity, and mere changes in composition will not automatically result in dissolution of the NUG or cabinet ceasing to function. In any event, as my pragmatic friends point out, the NUG continues its merry misadventures since the UNF and SLMC at least cohabit for the nonce. 

There was also a succinct piece by that MP-cum-constitutional expert setting out why the removal of the sitting prime minister is unconstitutional. Which, having perused at close quarters, I find I must agree with unreservedly and with no leaning towards patronising inferiority but a lingering sense of shamefaced admission that my arguments were not rigorous enough. At least, as a citizen concerned about my nation-state, I am reading the Constitution increasingly intently! 

Also, last but by no means least, I essayed: “So perhaps we will forbear to mention the UNP’s own short memory as it appears to have forgotten that their prime minister was also in a minority in government in January 2015 and was sworn in on the confident opinion of the president whose loyalty – or attention or anything else – he no longer commands. We need not even mention that if the born again democratic-republicans who are pounding the pulpit on legality and constitutionality now were to refer to the terms of the 19th Amendment, the not so small print would remind them that the cabinet of over 30 was in itself contrary to the spirit of the constitution – so let’s not lose too much sleep or waste airtime over the letter of the law not being honoured. On to impeachment of the incumbent president or a no-confidence motion against the now ensconced new premier or whatever the next fortnight brings.”

Well, perhaps what I could or should have considered is this: that Ranil Wickremesinghe was appointed prime minister in January 2015, at a time when provisions for the removal of an incumbent premier were entirely discretionary, and at the whim and fancy of a president under the 1978 Constitution. When RW was seated in a minority government, he could have been defeated by a democratic parliamentary vote on any grounds, but his coalition partner the president would have asked him to continue despite not commanding a confident majority in the House under the writ that prevailed then.

Also, one must recognise (as I have done now, courtesy my critics) that this situation was turned on its head by 19A. The PM’s powers were extended significantly, which was not less than one expected of an ambitious RW then seeking to safeguard his tenure. Plus, conditions for his putative removal were clearly and precisely stipulated. 

Ergo, if MS had tried to parachute RW into the PM’s chair vide 19A, he would have to first defeat incumbent D. M. Jayaratne in a No-Confidence Motion (NCM) or budget vote, or ‘persuade’ him to resign. What is more, at any time after the enactment of 19A, vis-à-vis April-August 2015, RW’s January 2015 appointment could have been challenged and defeated through an NCM in the House, which the UPFA would have won hands down by dint of superior numbers.

Last, 19A clearly sets out that when the so-called National Unity Government was formed, the number of cabinet ministers is a matter for parliament to decide. The 30-member limit is pertinent to a single-party government. So 45-plus ministers in the MS-RW administration of yore was “patently constitutional, if immoral”, as a political analyst has convinced me. And I am now persuaded that the letter of the law was not violated by the former regime. 

But while it was wrong of me to suggest it, the spirit of that indefensible jumbo cabinet still bothers the Spartan in me – who once baulked at fat-cat politicos asking the burdened populace to tighten austerity belts while they drove to the House and back in super-luxury chariots.   

Be that as it may. I would like to republish my conscientious disclaimer of 31 October (Shades of 95 theses? Not!) that “I am no constitutional or legal expert.” But that could or should in no way invalidate what else I said: “But like most other politically aware readers, I know what I like to see in my democratically elected leaders.” So let me stand by some of the other broader statements I made about the state of politics today. To wit:

That we’re truly upset with Maithripala Sirisena that he has been much less than a democrat and much more than a deceiver. Also, that he’s been prone to play realpolitik – like a long line of many better and brighter republicans before him. And proven publicly that power tends to corrupt and executive power egregiously, which is no shock or surprise anymore. Especially if you consider that our head of state’s political DNA comes from tainted stock, the sterling common candidate of 2015 having been a stalwart in an authoritarian antidemocratic regime under two Rajapaksa administrations spanning a decade from 2005-2015. “Once bitten,” I wrote two days ago, “we the public and our pouting premier could or should have been twice shy.”

Therefore, I retract nothing of what’s immediately above. Rather, I add the charge of coup! and perverse political crisis brought on by authoritarian ambition and early antidemocratic leanings. Which, if left unaddressed by the supreme law of the land, might contour the slow and gradual descent into tyrannical hell redux, courtesy a brace of dictators in tandem?

However, rather than end on the same tenor of personal admissions as I began, let me conclude with the underlined assertion that a Mistake is not a Sin until or unless one refuses to acknowledge or rectify one’s transgression.

Sorry to say that on top of my charges against MS, that he was demonstrably motivated by ambitious realpolitik and a desire to secure an uncertain political future for himself by a political misadventure, I now also believe that he acted unconstitutionally and illegally.

And in addition to agreeing with “the common consensus that the common candidate has both disgraced himself and dismayed the people with his altogether common character”, let me add a clarion call: to subject to the full force of the country’s constitutional law the transgressor who refuses to acknowledge or rectify a Mistake that is rapidly concretising into Sin.

But not because I love one miscreant prime minister less than another malcontent premier more. But because I do love the once blessed island republic of which I am part… son of a small island with a greater destiny than self-serving politicos today have the vision and courage to see.

I end in the fresh hope that the supreme court of the land as much as its legislature will have a rectified vision and the courage to acknowledge that ‘a mistake was made’. It is not too much to hope – a new hope and trust, and one that grows weaker with the guttering flame of democracy being threatened extinction by preachy presidents and low growling autocrats returning to rule the roost – that the law in two other arms of government will not bow before tyrants or bend the knee to fearful expediency.

’Nuff said. The rest is silence. We hope and trust it will not be an enforced one.

(Journalist | Editor-at-large of LMD | Writer #SpeakingTruthToPower)