Dr. Jehan Perera calls for action to preserve the rule of law to be upheld

Sri Lanka has a mixed presidential and parliamentary system of government. Until April 2015 when the 19th Amendment to the Constitution was passed, the presidency was the dominant institution – it was superior to and not coequal with parliament and the judiciary.

When he was prime minister, the late president Ranasinghe Premadasa saw himself as no more than a peon vis-à-vis the president during his premiership. Former Chief Justice Shirani Bandaranayake was impeached when she ruled against ex-president Mahinda Rajapaksa’s wishes. The 19th Amendment sought to change that balance of power.

Ironically, President Maithripala Sirisena himself gave leadership to the passage of the 19th Amendment when it was being framed and took considerable pride in its reining in of presidential powers.

This supreme law was passed in 2015 by a near unanimous vote in parliament with only one MP opposing it. But now it appears that the president, polity and general public need to be educated on the meaning of that law, which reduced the president’s powers – it made his arm of government coequal with the legislative and judicial branches.

In a constitutional democracy, the constitution is the supreme law and governance cannot be on the basis of personal prejudices, or the whims and fancies of individuals.

Unfortunately, our polity was plunged into a constitutional and political crisis by the president when he decided that he had the power and option to dismiss Prime Minister Ranil Wickremesinghe and his government – and as arbitrarily, to replace him with Rajapaksa from the ranks of the opposition.

The purpose of the constitution is to take political decision making out of that personal realm to provide stability and predictability to government.

But the president’s understanding of his role as mandated by the constitution was an extremely personal one; it was almost as if he considered his position as president as conferring personal rights in a constitutional setting in which his personal prejudices could take first place. Sirisena was impervious to pleas that he acts as a coequal rather than superior political leader.

While the president may wish to have his preferences met informally, he cannot insist on having his prejudices accepted formally.

In his clash with former counterpart Wickremesinghe in government, the only institution that the president appeared to be willing to refer to was the judiciary. When the president wished to extend his term by a year, he sought an advisory opinion from the Supreme Court. He did not complain, oppose or seek to sack the judges who said his term was five and not six years under the 19th Amendment. When Sirisena decided to sack parliament after deposing Wickremesinghe, he didn’t publicly complain or oppose the judicial stay order.

The president’s willingness to respect the judiciary, which emerged as the arbiter between the executive and legislature in their clash, must be appreciated. It has been stated that the courts are the last refuge of those who are weak, victimised and unjustly treated. The judiciary does not exist in a vacuum but in a politically determined time and space.

In democracies that are relatively fragile or volatile, the judicial branch of government is deferential to the executive branch when called on to decide between the rights and wrongs of the executive branch in relation to others. The executive branch, which is backed by the coercive apparatus of the state, can intimidate or punish those who oppose it.

It was in the national interest that Sirisena wasn’t encouraged to set a precedent so that the personal likes and dislikes of a president would determine the future prime minister, cabinet of ministers and state of the economy. The judiciary rose bravely and with integrity to the challenge.

At stake in the political power struggle was adherence to the constitution and rule of law, which civilises the use of power and reins it in. These laws are not – as the president seems to have been misadvised – mere guidelines for action but rules that cannot and must not be breached.

The collectively decided path in this crisis and its aftermath will determine what happens in the future. For space given to presidential arbitrariness at present will be space provided for arbitrariness in the future by miscellaneous individuals who will briefly preside on the political stage but take decisions with lasting consequences.

Decisions made today will define how the country is governed in the future. This is why the fight for the rule of law to prevail and the constitution to be upheld is so important.