Democracy Prevails… What Next?

The past three weeks have been a rollercoaster ride for politics in Sri Lanka. From the shock when MR was appointed Prime Minister (whilst RW was still prime minister) – a constitutional coup carried out by the President – to the outrage when, once again, the constitution was violated when the parliament was dissolved by a President who was afraid to face reality… and who tried to buy time, when buying votes failed… and to the exhilaration felt when democracy prevailed.

Through this chaos, what was most promising was the nation coming together to protect democracy and preserve the sanctity of the constitution. Putting party politics aside, citizens stood together for the sake of democracy. Most importantly, the judicial system displayed that it is independent and capable of upholding the rule of law – when it issued an interim order stopping the dissolution of parliament until the final judgement is passed on the 7th of December.

The Speaker of parliament too showed that he is a ‘no-nonsense’ leader when parliament was immediately reconvened on the 14th of November, as originally gazetted. It was down to business – within 20 minutes of starting the session a vote was taken and 122 MPs voted in favour of the no-confidence motion, declaring the illegitimate government created by MS and MR no more. The Speaker continued to act with integrity and bravery, facing mobs who failed to accept the vote on the no confidence motion.

Democracy prevails… so what next?

The damage done in the past few weeks needs to be reverted, the current chaos in parliament needs to be resolved, and a final decision needs to be given in court.

But two big questions remain… (1) Seeing the danger caused by the Executive Presidency should it not be completely abolished? (2) What steps should the parliament and legal community take to prevent a President from violating the constitution again?

The past few weeks have demonstrated that excessive power in the hands of one person can be extremely dangerous – and this could plunge the nation into further crisis. In fact, this makes one question if this provision is in line with the norms of democracy? Additionally, there may be a conflict of interest when a President and Prime Minister are from different political parties, as under this provision both President and Prime Minister have executive powers.

Although the 19th Amendment to the Constitution has restricted some of the powers of the Executive Presidency – what could be done even when these restrictions are not respected? This leads to the next question…

Can a president who violates the constitution be tried in court? According article 35(1):

“While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President…”

Therefore this brings us back to the debate of whether the only way to prevent a President from violating the constitution (without any consequence) is by abolishing the Executive Presidency?

Nonetheless, there is another article in the constitution, article 38(2), which states that a President can be removed from his position if he intentionally violates the constitution – albeit, this cannot be done without a 2/3 majority in Parliament, and consequently referred to the Supreme Court for a fair trial. Or under Article 38 (2) (b) (ii)

“such notice of resolution is signed by not less than one-half of the whole number of Members of Parliament and the Speaker is satisfied that such allegation or allegations merit inquiry and report by the Supreme Court.”

Despite what will happen next… we need to seize this new found momentum to preserve democracy, there might not be a better time to address these issues than right now…

More importantly, to the Parliament and Supreme Court: let’s continue to serve justice and abide by the rule of law… and let’s not forget the justice that is still pending. Let this be a new hope for our nation.

 

 

A special thank you to Mr. Viraj Vithanage (Attorney-At-Law) for the legal perspective.

 

 

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