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Proroguing Parliament: A political subterfuge

31 Jul 2022

By Austin Fernando Prorogation has a history. All our Presidents have prorogued Parliament. A prorogation was proclaimed by President R. Premadasa after his impeachment and the chilling austere address by him in the Parliament afterwards is vividly remembered. It was a great example of how to use prorogation to eliminate political instability.  Recently, the prorogations were connected to concealing the Central Bank bond scam, the duty reduction scam in sugar importation, and so on, and these have been critically discussed in political circles.  The most affected by prorogation are the parliamentary Committee on Public Enterprises (COPE), the Committee on Public Accounts (COPA), etc., which dissolve automatically, causing the concealing of financial irregularities, although Parliament has total financial authority under Article 148 of the Constitution.  It is correct to say that those who previously opposed prorogation due to it enabling the concealing of financial irregularities do not take such stances now, due to political fraudulence. Hence, it can be said that sometimes prorogation is a crooked political subterfuge.   Proroguing has happened even in the more recent past. Here I refer to a failed prorogation, which was unknown not only to the public but even to the then Prime Minister Ranil Wickremesinghe in deep detail, as it was political subterfuge.  President Maithripala Sirisena signed the prorogation proclamation and sent it to the Government Printer, a reference number was allocated to the Gazette Extraordinary, and though trilingually drafted, the gazette was never published. The Sinhala draft had been completed, and the Tamil and English drafts were being proofread.  Recently, when I inquired about this gazette from the Government Printer, quoting the reference number, a lady officer said there was no such gazette and questioned whether I had a wrong number!  Political trickery!  With President Sirisena winning the Presidential Election and assuming leadership of the Sri Lanka Freedom Party (SLFP), there was a split in the United People’s Freedom Alliance (UPFA).  Thereupon, a political organisation named the Sri Lanka Podujana Peramuna (SLPP) was initiated.  There was a legal constraint against the party representing Parliament under the SLPP, since it had contested the Parliamentary Election in August 2015 under the UPFA. Nevertheless, it attempted to make Mahinda Rajapaksa the Leader of the Opposition and planned to field candidates at the Local Government (LG) Elections under the SLPP.  Motivators at Local Government Elections  The LG Elections were held on 10 February 2018 – there was a delay in holding elections due to legal revisions.  Immediately after the dissolution of LGs, former President Mahinda Rajapaksa launched an intensive and organised political process to bring the former UPFA LG members under his grasp. Wide and organised publicity was given to this and most political groups that supported him at the Presidential Election were added.   In the meantime, the United National Party (UNP) and the SLFP were engaged in the national politics of the Yahapalana regime, while Mahinda Rajapaksa supporters were involved in local politics.  Finally, when candidates were selected, experienced, politically-active, public-spirited, and well-known candidates were included in Mahinda Rajapaksa’s lists. President Sirisena had to then nominate some novices for the election as seniors were unavailable. Under these circumstances, even obtaining 12% of the vote with such candidates is an achievement.   At the election, the new Front won 3,436 seats, polling 5,006,837 votes; the UNP won 2,433 slots, polling 3,640,620 votes; the Janatha Vimukthi Peramuna (JVP) won 434 slots, polling 710,932 (5.75%) votes; and the Tamil National Alliance (TNA) with 337,877 (2.73%) polled won 417 slots for its representatives. Some who analysed these results conceded that there was potential for the former UPFA to gain 52% at a Presidential Election. Since criteria such as personal popularity, race, caste, religion, relationships, etc. influence voting at LG Elections, while there is less potential that such criteria is considered at a Presidential Election, there is reason to believe that the conclusion arrived above could be illogical. Regardless, the cumulative percentage reflected the strength of the Alliance.  Mahinda Rajapaksa would have thought of the possibility of mobilising the remaining 9% using psycho-motivators of the racial, religious, and war-mongering variety. There existed clergy, war heroes, et al who could publicly orchestrate such.  Stabbing Ranil in the back This thinking developed into a massive crisis in national politics. Concurrently, a group intimate with President Sirisena and belonging to the SLFP and UPFA launched a project to save their parties from the UNP alliance.   The aforementioned electoral results were a motivator. They intended to expel Ranil Wickremesinghe from the premiership and appoint Mahinda Rajapaksa in his place. This was a cunning political subterfuge. Those who were involved in this have become his erstwhile acolytes now – and some even his ministers! Politics consists of such talents! The process consisted of several steps. It was planned to induce pressure to remove Wickremesinghe from the Premiership after the LG Elections. It is well known that a group of politicians (UPFA/SLFP) intimate with the President was behind it.   The then Attorney General and I intervened with President Sirisena and prevented this from happening. Our intervention was in the position of responsible senior State officers and not for any personal gain. However, it must be said here that there were issues between the two leaders.   The best example for this is the Central Bank bond scam. The President publicly hinted that the Premier had attempted to continue with Arjuna Mahendran as the Governor of the Central Bank, regardless of widespread publicity in the media and political circles identifying Mahendran as a figure directly connected to the scam.    The President was extremely distressed about this. Addressing the nation on 28 October 2018 he noted, in a complaining tone, that when he was scheduled to visit the Central Bank, the Premier had inquired about said visit and when he (the President) had arrived at the bank, Arjuna Mahendran had been present with a sheaf of betel to receive him. Such incidents had accumulated during the conflict with the Premier.   Bilateral policy conflicts   Although not directly related to prorogation, I am reminded of policy conflicts, as they were the reason for the culmination of later conflicts.  One such policy conflict related to revising land laws. A draft copy of the revision was sent to the President by the Prime Minister for observations. This was good ethics and it was an attempt to revise the law considering land as a commercial good. Advisor W.J.S. Karunaratne and I discussed with the President in order to draft his observations. However, the President rejected the proposal.    President Sirisena, who hailed from a colonist family beside the Parakrama Samudra, who had as a child run amongst the harvested paddy lands, bathing in the canal waters, thought that the proposal would motivate colonists to sell their lands in underhand ways and squat on State lands, becoming a social evil. He thought that Wickremesinghe, hailing from a pedigree unconcerned with such complaints, did not possess such aspirations.   The President intimated his protest to the Premier in writing. On the President’s instructions, President’s Secretary P.B. Abeykoon, Advisor W.J.S. Karunaratne, Additional Secretary Thalatha Upulmalee, and I explained to the Premier the President’s concerns. In his address to the nation, the President stated that the Cabinet memorandum was awaiting approval.   Proroguing as a solution In a hidden, but continuously ‘invading’ and ‘pinching’ policy environment, the President would have considered an ‘underhand’ move by proroguing the Parliament after the LG Election results were announced. This was one week after the election results were announced. I do not think this was his solo decision; he discussed only the preparation of the gazette notice. I was surprised at the subterfuge.  Without questioning him, I asked: “Wonder whether you discussed the proroguing with your political partner – the Premier, and the head of the Parliament – the Speaker?”  “No. Had I told them, they would have objected.” This was deception. It conveyed a message.  To convince the President of the true repercussions, I asked: “Is this good for an Alliance Government? It also conveys wrong messages to foreign countries, investors, tourists, and political commentators.” However, he was unprepared to listen to me. We have observed in the past and present that he was no exception when it came to behaving in such a manner. It will be so in the future too. Upon ascending to these posts, presidents, premiers, ministers, et al become all-knowing Sarvagnanas!  I was ordered to prepare the gazette notification – I could not intervene over his constitutional authority.  Accordingly, I went to the Paget Road Presidential Residence with the gazette notification. I once again requested him to reconsider the prorogation before signing, but failed to convince him. He signed the gazette and my maximum interventions failed to yield positive results. Wisdom, reasonable thinking, and practice were lost. I sent the gazette to the Government Printer.  Half-an-hour later I received a telephone call from the President.  “Did you send the gazette for printing?”  “Yes,” I confirmed.   “The Premier and Speaker came to see me. I told them I have prorogued the Parliament, but they tell me this is not an appropriate time to prorogue because investor and tourist arrivals will be affected. Can you stop printing it?”  Half-an-hour ago I advised him the same. My wish had also been to hold the printing and I had no political motive for it. Having informed Government Press Head Gangani Liyanage that I would be arriving to correct a mistake in the gazette, I rushed to the Government Printer’s office with my Assistant W.A.D.H. Kanchana.  As soon as I arrived, I took possession of the originals of the signed Proclamation, the covering letter from my office, and all other relevant documents. The gazette in Sinhala was ready for printing, while the Tamil and English versions were being proofread. Informing the Government Printer that printing was unnecessary, I took into custody a Sinhala copy of the gazette. It was expected to be published under number 2058/51 on 18 February 2018.   Since the gazette could not be published without the Tamil and English versions, and I had taken possession of the required documents, the proroguing of Parliament did not take place.  I have never heard nor read of such an event happening before. I have only heard of instances where it had been repealed after publishing – or in current parlance ‘reversing’. There are historically noted persons in this regard, but why name them? A copy of the unpublished but printed Sinhala version of the Proclamation has been produced alongside this article. The Tamil and English versions were not published after proofreading.   As I entered, I telephoned the President and said, “Everything is alright.” He said, “Good,” but of course in a defeated tone. The embarrassment facing those who had advised him would have been foremost in his mind.       Lessons learned  There is a lesson to be learned from this episode. Erskine May, a specialist on parliamentary tradition, states that in British practice and law, propagation is the prerogative of the Crown. In our Constitution, it was the President’s prerogative under Article 33(2)(c) [as per the 19th Amendment].  Though this discretionary power had been given to the President by the Constitution, since the Government established in 2015 was an alliance, I believe that the Indian and British practice was more appropriate.   The Manual of Parliamentary Procedures in the Government of India (Section 17.2.3 Prorogation) states: “After obtaining the approval of the Cabinet Committee on Parliamentary Affairs to the proposal to prorogue the Houses, or either House, the Government’s decision is conveyed to the two Secretariats or concerned Secretariat of Parliament to enable them to issue the Order of the President and to notify the same in the Gazette of India.”  Hence, the procedures enjoined some checks on the President’s authority given in Article 85(2) [as per the 19th Amendment] for proroguing. Even the Queen follows the advice of her Prime Minister. I inquired whether the PM and Speaker had been consulted, thinking that in an alliance, whatever is written or unwritten in law, ethics may require such consultation. In short, the most important lesson is that even the President should use discretion carefully, though he could possess provision or authority to act.   Though I am not a constitutional expert, I note the aforementioned experience as an example demonstrating that power endowed should not be executed without checks and balances, with messaging for future reference if required, although this is not meant to overshadow Erskine May or any other constitutional expert.   I received the indication that this prorogation was motivated by emotional impulse without wisely considering its consequences. The estrangement that was developing between the President and PM would have supplied the base for it.  The President who did not tolerate the PM’s aloof behaviour on policy (e.g. land, trade agreements) and operations (e.g. bond scam, appointment of the Central Bank Governor) would have used prorogation to convey the message that although the PM had parliamentary power, the Executive was the leader in decision-making. In this, the influence I had as a public officer was limited. Prorogation is a political decision. Simply and directly viewed, the President has only executed his legal and discretionary power. Discretionary power is an act dependent on such an officer’s decision and conscience. However, if used arbitrarily, hypothetically, and unreasonably, it is abuse. I pray that when this power is used by a president or any official in future, this principle is brought to mind.      The President, withdrawing the proclamation immediately following representations made by the PM, proved that irrespective of what the Constitution states, authorised consultation led to careful judgement. If this consultation continued during the Yahapalana regime, the political upheavals that followed would have been minimised. We continue to face the pain of these upheavals even today.  Having considered the Indian and British experiences, we proposed constitutional amendments through the Collective for Reforms in order to obtain at least the concurrence of the prime minister/cabinet before the president proclaims a proroguing, but it has fallen on deaf ears.  The Parliament is prorogued now. It is too early to publicise the true intentions of the prorogation. We are not aware whether COPE has irritated someone. Most likely it could be for purposes of personal or favourable political gains for the Government in power. However, I would be happy if the ethics of discretion are respected by authorities.  (The writer is a former Secretary to the President)  


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