Supreme Court steps in to save democracy in Sri Lanka

Unyielding Members of Parliament and a Supreme Court that worked to uphold the supremacy of the Constitution have managed to navigate Sri Lanka from the abyss of uncertainty to at least a semblance of order.

From October 26, when President Maithripala Sirisena replaced Prime Minister Ranil Wickremesinghe with former President Mahinda Rajapaksa, up to December 13, when the full bench of the Supreme Court annulled the President’s decision to dismiss Parliament, the country was teetering on the edge of unchartered legal space.

The MPs refused to name their price and, later, every single judge of the Supreme Court stood up. It did not happen easily though. There was tension all-round when the Full Bench of seven judges did not keep its 4 p.m. appointment with Court No.502 on December 13 to pronounce its verdict on the constitutional validity of Sirisena’s act of dissolving Parliament. Many anxious faces in the packed courtroom thought this to be an ominous sign.

There was much drama even before the hearing commenced in this case. Rajapaksa’s Sri Lanka Podujana Party (SLPP) demanded a bigger Bench because they were not confident that the three-judge Bench of Chief Justice Nalin Perera and Justices Priyantha Jayawardena and Prasanna Jayawardena would be congenial to its prayer. It so happened that even with Rajapaksa-era appointees, the SLPP lost 7-0, with not one judge buying its prayer. (The President is yet to approve two more names, which has been approved by the Cabinet. One of them is a Tamil.)

The judges came in 52 minutes late, and in the next few minutes held, most importantly, unanimously that Gazette 2096/70, issued to dissolve Parliament, was ultra vires and unconstitutional. “It violated Article 12(1) of the Constitution,” the bench said to the stunned batch of petitioners.

The delay was because of one of two reasons: one, a judge had a different reasoning for arriving at the verdict and, second, there was not much discussion among the judges as a group before they arrived at their conclusions. In short, it appears that each of the seven judges arrived at the same decision on their own. In doing so, the Supreme Court restored the spirit and the letter of the law.

In Sri Lanka, the President makes the appointments to the higher judiciary and has the power to dismiss anyone in any post, including independent commissions, and the President cannot be prosecuted under any circumstances. In one instance, a Chief Justice, though handpicked by a former President because she was pliable, was unceremoniously impeached when she tried to step out of line. The Attorney General of that time was appointed Chief Justice (He was later sacked after the government changed).

In the present case, unmindful of the many hints dropped by the President via the media and through his friends, the court delivered a judgment purely on the basis of the provisions of the Constitution, which decrees that Parliament cannot be dismissed before it completes four and a half years of its five-year tenure.

“Supremacy of our Constitution and rule of law has triumphed! What happens now to those who intentionally violated the Constitution,” tweeted Rauff Hakim, a former Minister in both the Wickremesinghe and the Rajapaksa governments.. His party, the Sri Lanka Muslim Congress (SLMC), which takes a stand on issues on the basis of which formation favoured Muslims more, changed tack this time around. Taking a leaf out of the Tamil National Alliance (TNA), an umbrella of Tamil political parties with its base in northern Sri Lanka, the SLMC decided to fight this coup on principle. In doing so, both the minority political parties in Sri Lanka, the TNA and the SLMC, proved that for them, too, the country came first; ethnic issues could be sorted out later.

It is not as if all the problems created by the bizarre dismissal of Ranil Wickremesinghe are over. The Supreme Court has ruled in just one of the many cases that were filed after the constitutional coup. Many other cases are on, but the critical petition was the one that was taken up on December 13.

Namal’s response

Mahinda Rajapaksa’s son, Namal Rajapaksa, who is an MP, and who takes the initiative these days in party affairs, tweeted after the verdict: “We respect the decision of the #lka’s Supreme Court, despite the fact that we have reservations regarding its interpretation. We will continue to stand alongside those calling for a parliamentary election, without which there is no real justice for the people of #lka.”

While, this was the only response from the SLPP camp, spokespersons and other members of Sirisena’s Sri Lanka Freedom Party (SLFP) were asked not to speak to the media. An order to this effect was signed by Sirisena himself.

The court may have clarified the most important legal issue, but the problem is not a legal one per se. It is a political problem created by an obstinate President and a conniving former President. A political solution with the participation of all actors does not seem possible at this point, but an understanding between Sirisena, Rajapaksa and Wickremesinghe is probably the only way to prevent Sri Lanka from slipping into the abyss once again. There appears some forward movement on a rapprochement between Sirisena and Wickremesinghe following a surprise short meeting between them, arranged by Parliament Speaker Karu Jayasuriya. But there has been no attempt so far to bring Rajapaksa into the deal.

If the major political combinations are not part of a solution, then the problems in Sri Lanka could take an anti-minority turn, leading to the spiral of violence the country has witnessed in the past. A former president of the Colombo Chamber of Commerce, Amila Kankanamge tweeted: “It’s evident that there’s a very scary agreement between the @officialunp and the TNA and it’s quite evident that @RW_UNP has agreed to something detrimental to the country. Their agreement should be revealed to the public.” The message here is that Ranil Wickremesinghe has cut a deal with the TNA and that he is aiding the balkanisation of the country. This is not an isolated voice.

There is a copy of the “agreement” between UNP and TNA floating around in cyberspace, which has forced the TNA to respond. Both the UNP and the TNA have filed a police complaint to trace this fake news generator. The fear is that there could be many more such messages across social media platforms, which could lead to the revival of the ethnic conflagration once again.

The ball is in Mahinda Rajapaksa’s court, and, as has been the case for most of the past decade, it will be his decision to make. Will he show the grace to to accept an unequal compromise, or will he drag the 21 million people of Sri Lanka into a zone of uncertainty?