By Neville Ladduwahetty
The BASL reportedly said: “Respect for the rule of law and constitutionalism is essential to protect the rights of the people of Sri Lanka and their livelihoods…. The BASL unequivocally declares that at this decisive moment in our country, it is absolutely necessary that all citizens respect the rule of law and constitutional governance. It is not in the interest of the country, or its people, to ignore the provisions of the Constitution, which is the framework within which Sri Lanka is governed” (Daily FT, July 13, 2022).
Prime Minister Ranil Wickremesinghe has been unequivocal in his commitment to defending the Constitution. The question that follows is whether the Constitution and the rule of law have been violated in the events of recent months, and if so, by whom and to what extent.
LACK OF RULE OF LAW
For example, the public space of Galle Face and its surroundings has been occupied by protesters, thus violating the rights of others to access these spaces. Others who have engaged in protest marches have also seriously compromised the rights of others. Such arbitrary and unilateral action contradicts the very principles of a just society to which the protesters aspire. What the government should have done was find an alternative space for the protesters to carry out their activities in a way that does not violate the rights of others. It is therefore evident that the government has been complicit in failing to uphold the rule of law and in protecting the fundamental rights of the silent majority to equal protection, under the law.
At first, the BASL and other advocates, including representatives of foreign governments, collectively defended the rights of protesters for peaceful demonstrations. Throughout this period, the BASL acted as the guardian of the law. However, advocates of the right to peaceful protest have failed to question what the protests are about. Had they done so, they would have realized that although protesters initially claimed they were for system change, their main and very vocal demand was “GotaGoHome”. It amounts to a group of people, however strong, demanding the resignation of a democratically elected President who is also the Head of State, elected to exercise the executive power of the People as part of their sovereignty, resorting to claims and engage in activities in violation of the rule of law, when constitutional provisions exist to achieve their objectives. Having failed to draw protesters’ attention to the compelling need to adopt constitutional means to achieve their goals, the defenders are now reminding all concerned of the “need for constitutionalism and the rule of law”, after several aspects of the rule of law were violated by the same protesters they previously defended.
Over time, the protesters were portrayed as representing the popular wishes of the people. No attempt has been made by the government to determine their true strength against the silent majority. This perception caused the protesters to be taken seriously enough to be part of a potential political force that could be exploited politically to serve the narrow ends of minor political formations. The attention the protesters received emboldened them to the point that they ceased to be peaceful protesters and ended up storming public buildings and vandalizing property, claiming it was theirs, without surrendering. realized that these goods belonged to the whole nation. Vandalizing them, therefore, is destroying national assets for which accountability is required. Who is responsible for such actions? Shouldn’t those who initially stood up for the protesters and now say that the protesters’ wishes must be granted share the responsibility for their failure to publicly withdraw their support not only for resorting to unconstitutional measures, but also for vandalizing national assets that belong to the present and to future generations?
ATTACK ON CONSTITUTIONAL GOVERNANCE
The formal appointment of former Prime Minister Wickrrmrsinghe to serve as President Gotabaya Rajapaksa, while he was absent from the country, as interim President, is in line with Article 37(1) of the Constitution. This article specifically states: “If the President is of the opinion” that for any reason he is unable to perform the duties assigned to him by the Constitution “he may appoint the Prime Minister to “carry out of the powers, duties and functions of the office of President during such period”. Since “during this period” is not limited to a specific period, it would be wrong to interpret that he himself, or any president, left office during the period he was physically absent from office. Also, in accordance with the Constitution, his formal appointment as interim President, following the formal resignation of former President Gotabaya Rajapaksa. However, until Parliament elects a Speaker and appoints a Prime Minister, the Hon. Ranil Wickremesinghe is expected to serve as interim president and prime minister if the administration of the country is to continue unhindered. If, on the other hand, he gives in to the demands of protesters and others and resigns, the entire country would be engulfed in administrative chaos. This may be what protesters want, and others who tolerate such demands, because out of chaos comes opportunity.
The call by party leaders, as well as former president Sirisena, for the resignation of current interim president Ranil Wickremesinghe has raised serious concerns. If he complied with the “request”, Sri Lanka would be left without an interim President and in the absence of an appointed Prime Minister, the Cabinet and Secretaries of Ministries would cease to exist, leading to a complete collapse of the government. ‘administration. Do the party leaders want this?
If the party leaders had been so disappointed in the President that they asked him to step down, they could have instituted an impeachment motion, with the support of the protester, in Parliament under Rule 38(2) and succeeded in get rid of the President, constitutionally, in accordance with the oath they had taken to respect the Constitution. On the other hand, if the party leaders have called for the resignation of the president because they hold him, and him alone, responsible for the disastrous economic situation of the country, they are forgetting that, since most party leaders are or were members of the Cabinet, that they are collectively responsible “for the direction and control of the Government” (article 43, paragraph 1). Therefore, it is not in accordance with the sentiments of the Constitution to hold only the President, whoever he is, responsible for the current economic crisis. Learning a lesson from the UK, it was collective action by the British Cabinet that forced Boris Johnson out as leader of the Conservative Party. Therefore, the nation’s hope is that future Cabinets take collective responsibility for their actions, and NOT allow its leader to take the rap alone for their collective misadventures.
No attempt was made to establish the true strength of the protesters (Aragalaya). The common perception is that they represent the people and their aspirations to the point that they represent the aspirations of ALL Sri Lankans. Another hypothesis is that the SLPP lost the mandate that was obtained in the August 2020 parliamentary elections. Although this may be the case, the question is whether he lost the mandate to the point of le fully transfer to Aragalaya. Therefore, it is imperative that assumptions be verified before basing policies on unverified assumptions.
In the absence of such determinations, the dominant tendency is to respond to all the demands of the demonstrators. For example, the refrain “GotaGoHome” which made him leave the country was a demand of the majority in Sri Lanka, or that of the protesters who claim to be a majority. Therefore, before going too far to meet the demands of Aragalayait is imperative that an investigation be carried out by a recognized institution to ensure the reality of the two hypotheses cited above.
The most credible option would be to await the outcome of a general election where the figures returned would reflect the true strength of the Aragalaya and the SLPP. It is only after establishing the relative strengths and weaknesses of the political formations that the future direction of Sri Lanka should be established. Making decisions about the future direction of Sri Lanka on the basis of assumptions before a general election would be a colossal mistake. The aim of a caretaker government should therefore be to await the introduction of any new legislation and executive policy until a reformulated Parliament is established.
There can be nothing more important than giving in to the demands of some for the resignation of a democratically elected president who, according to Article 4(b), is supposed to exercise the “executive power of the people, including the defense of the Sri Lanka…” as part of their sovereignty based on the supposed strength of such a claim. If such a president is unable to perform his duties, there are sufficient constitutional provisions to replace him, but not to yield to the demands of some who claim legitimacy on unproven grounds that they represent the voice of the people. To do so is to set a precedent that could lead to political instability, because it encourages violent dissent to bring about political change without enforcing constitutional provisions as much as possible, to change systems.
The issues presented here are not in the defense of Gotabaya Rajapaksa. Instead, it is in defense of ANY democratically elected president or any other member based on the “unchangeable republican principle of representative democracy” as stated in the preamble to the Sri Lankan Constitution. This principle states that there are constitutional procedures that must be followed if the persons who elected them find sufficient grounds to remove them from the office to which they were elected. Resorting to violence or demands when legal measures exist is unacceptable and must be condemned in the name of the rights of legal majority. It is also unacceptable to resort to violence on the grounds that the constitutional provisions are too intimidating or not timely enough.
Had the protesters adopted constitutional means to bring about political change, they would have had reason to distance themselves from those who wanted to bring about change through violence. However, this position is denied to them today. Moreover, the use of violence to bring about system change creates a precedent that precipitates instability. This is where the guardians and tolerants of the Aragalaya failed. They failed to direct and guide the energies of the Aragalaya to adopt legal strategies to achieve their goals. It is only when legal measures do not exist that other options can be considered, as during the Russian and French revolutions.