As opposition leader, Mr Sampanthan fought very hard to ensure that justice was done, the constitution respected and the rule of law followed with regard to Prime Minister Wickremesinghe. It is ironic that having performed this yeoman service, and ensured the successful reappointment of Prime Minister Wickremesinghe, that Mr Sampanthan should be its first victim and lose the position he held. The sequence of events in both the removal of Prime Minister Wickremesinghe and Opposition Leader Sampanthan from their positions suggests that following due process, or procedures established by law, is not a strong point in Sri Lanka’s ruling circles.
Instead of following accepted procedures, decisions are made on a political basis and then sprung into action without consideration as to whether they are just or not, or legal or not. The law, and the constitution itself, are too often taken as only a set of guidelines to be followed, but which can be transgressed if deemed necessary by the decisionmaking party. The belief that elected politicians are entitled to be supreme even above the law and all others because they have the people’s mandate is deeply embedded in Sri Lankan society and not in politicians only. The 1972 constitution purposefully made the judiciary and public service subordinate to the elected parliamentarians on the grounds that the embodied the sovereignty of the people who had given them their vote.
It is a tragedy that President Sirisena has recently been misled into believing that his electoral mandate as president permits him to push the boundaries of presidential powers to their extremes even to the point of transgressing them. He is now acting as a powerful opposition force to the government. This is a complete misreading of his role in the government. Those who are in government are meant to facilitate governance and to jointly solve the problems that exist so that the people may have a better life. This is also and certainly the duty of the president. He needs to find a way to work with the government not to thwart and undermine it.
Sri Lanka is still to get over the distortion of democracy that has come with the notion that politicians embody the people’s sovereignty and therefore notions of separation of powers and checks and balances do not really apply to them. The greatest progress in terms of these basic elements of good governance took place in the period January 2015 to October 2018 when President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe gave joint leadership to the creation of a new ethos of governance in which state institutions became more independent from political interference.
State institutions including the judiciary got strengthened in the past three years. Ideally, the judiciary should not be having to resolve political problems that need to be politically negotiated. But if there is a deadlock that is threatening the stability of the polity then the judiciary may have to take up the challenge and look into the legal aspects of the conflict as a way of ending it. The judiciary is better equipped to deal with issues of law concerning the position of the Leader of the Opposition which have a mix of political, legal, moral and ethnic considerations that need to be taken into account.
In the case of who should be the Leader of the Opposition it appears that political considerations have taken precedence over the legal, moral and ethnic aspects of the problem. The political dimension arises from the fact that former president Rajapaksa was unwilling to resign as prime minister despite having lost two successive votes of no-confidence in parliament. It now appears that as part of a package of incentives to persuade the former president to resign as prime minister, which he was refusing to do, he was offered the position of Leader of the Opposition. One of the key interests of the former president would be to obtain a strong political platform from which to launch his next election campaign.
There may be a political case for making former president Mahinda Rajapaksa the opposition leader. But the legal position is not so simple. This arises from the fact that both President Sirisena and former president Rajapaksa are from the same political alliance, the UPFA, which is registered as a political party represented in parliament. The complication is that President Sirisena holds three important cabinet ministries for himself, these being Defence, Mahaweli Development and Environment. These have been given to him by the constitution.
In addition, President Sirisena, even though leader of the UPFA, has purposefully taken a fourth ministry to himself, which is the former Ministry of Law and Order dealing with police and amalgamated it with the Defence Ministry. This shows that he is actively taking part in government. By taking these tasks to himself President Sirisena has ensconced himself and UPFA policies firmly within the government. In these circumstances a legal question arises whether the UPFA can, or ought to, be given the Leader of the Opposition’s position.
The need for a legal solution arises also from the fact that the TNA’s own case for the position of the Leader of the Opposition is complex. The TNA gave strong support to Prime Minister Wickremesinghe in his bid to regain the prime minister’s position. The TNA provided the votes of its parliamentarians to give the UNP led by Mr Wickremesinghe a majority in parliament on several occasions. These included the two no-confidence motions against Prime Minister Rajapaksa, the vote of confidence in Mr Wickremesinghe and most recently at the Vote of Account to pass a short-term budget for four months. In this regard the TNA has played the role of a responsible opposition which has safeguarded the democratic process, the constitution and the rule of law when all three were in danger of breaking down.
The responsible role played by the TNA can also be seen in the fact that they acted in the larger interest, rather than in their own narrow self-interest, during the recent political crisis. When both sides were desperate to get the support of the TNA and their 14 votes which made the difference between victory and defeat, the TNA could have struck a hard bargain with either side. At a time when a single parliamentarian was trading at a price of USD 2 million and above, according to President Sirisena no less, the TNA’s 14 parliamentarians could have fetched a premium price in terms of money or political concessions or both. But TNA leader Sampanthan’s commitment was to the democratic process, the upholding of the constitution and the rule of law. He and this party now need to show the Tamil people that their efforts were not in vain and beneficial to those who voted for them.
The fate of TNA leader Sampanthan and the TNA itself cannot be ignored by those who are concerned with political morality and the fostering of inter-ethnic relations. The denial of the opposition leader’s position to them would leave the ethnic minorities without the one position of high status in the polity that they enjoyed, as all other positions are occupied by members of the ethnic majority. The ethnic conflict arose and escalated into war because successive generations of Tamil citizens saw that they were being consistently marginalized and kept out of political decisionmaking. History must not be permitted to repeat itself either as tragedy or as farce. This is also why constitutional reform continues to be an urgent necessity.