Why Prorogation?

By N Sathiya Moorthy

Denying the Opposition allegation that President Gotabaya Rajapaksa’s unusual if not unprecedented decision to prorogue Parliament was aimed at stalling ongoing parliamentary panels’ investigations into governmental decisions and processes, Foreign Minister G L Peiris however conceded that when reconvened on 18 January, they may be reconstituted with new members. Which is what the Opposition allegation is also about.

There are three major parliamentary panels that keep a close watch on the functioning of the government and report back to the House and by extension the nation as a whole. Historically, the Committee on Public Enterprises (COPE), the Committee on Public Accounts (COPA) and the Committee on Public Finance (COPF) have all embarrassed the government of the day with their pointed inquiries and positive unravelling of corrupt practices, especially in financial matters.

Defying the precedent of having Opposition members head the key watch-dog committees, Parliament this time chose ruling SLPP representatives, namely, Charitha Herath, Tissa Vitharana and Anura Priyadarshana Yapa, to head COPE, COPA and COPF, respectively. There were issues about the Herath-led panel ticking off the incumbent government on multiple issues.

The Supreme Court is seized of the ‘fraudulent transfer’ of the Sri Lanka Institute of Information Technology (SLIIT) to private parties, after Dr Wijeyadasa Rajapaksa, dissident parliamentarian of ruling SLPP, acted on a COPE finding, seeking a direction for the government to take back the institution. The COPE is also dealing with a host of politically sensitive cases pertaining to the Board of Investment (BoI), Sri Lanka Cricket, Litro Gas and Terminal, among others.

Responding to media queries, Prof Peiris, a constitutional expert in his right and  also the chairman of the ruling SLPP, quoted the statute that empowered the President to prorogue Parliament. He also cited the Constitution to argue that nothing stopped Parliament to reconstitute the committees or appoint new chairmen. He pointed out how the Opposition can still take up the issues before the House all over again.

He did not comment on the question if the committees, if reconstituted, would have independent members and chairs that would take up the issues and cases left behind by their counterparts or act independently. That he was not quizzeds on this aspect specifically may be on reason. But the learned professor’s explanation was academic at best but unconvincing, still.

The Opposition can be expected to create a ruckus in Parliament when the House meets on 18 January, as rescheduled by the presidential notification on prorogation from the originally fixed 11 January. They could also take it to the streets, claiming that the government was afraid of facing Parliament and its panels, and thus the issue belonged to the people.

Morally, however, the Opposition too cannot go too far when it comes to the party in power abusing and misusing political processes and constitutional provisions. Under the predecessor National Unity (GNU), President Maithripala Sirisena dissolved Parliament overnight in June 2015, anticipating defeat for Prime Minister Ranil Wickremesinghe, with whom he had shared mutual support, if not trust, at then. That it was only a delayed implementation of his promise to dissolve Parliament within 100 days in office after taking over in January that year, did not cover his true intention.

Two go their ways?

Yet, if Prof Peiris’ argument that the prorogation was not aimed at dissolving nosey parliamentary panels at one go, then the question arises why the prorogation at all. Significantly, the prorogation came on the very eve of President Gotabaya flying out to Singapore on a private visit, purportedly for a follow-up on the election-eve cardiac procedure he underwent in 2019.

That the President’s younger brother and Finance Minister Basil Rajapaksa, who should be in the thick of things with the nation’s economy already on oxygen-support in these times of Covid pandemic, has added to the woes of the people and the speculation of the Opposition and the pro-Opposition social media, by flying out, reportedly to the US via Dubai, again on a private visit of his own. The Opposition has flayed Basil’s foreign visit, and rightly so, in a way.

With one brother flying to the East and another to the West, it has been left to Prime Minister Mahinda Rajapaksa to manage the political equilibrium and try and restore the party’s confidence in the leadership before addressing the people, who are said to be increasingly losing faith in this dispensation. With presidential polls due only by the second half of 2024, that is a lot of time to cover and a lot more of issues and concerns for the government to tackle.

According to news reports, the Cabinet was not taken into confidence on the prorogation decision. If so, the question arises if the presidential powers viz prorogation is an absolute power or objective power – or, it should be subjective power, where the agency of the Cabinet needs to be heard before the decision is taken. It is unclear if the Supreme Court would be called upon to clarify the matter.

There is a political angle, too, to such a constitutional question. If the Cabinet need not have to be consulted on prorogation, political morality and propriety still dictates that the Cabinet ministers are at least kept informed of such decisions. It is equally so in the case of Parliament Speaker. It would have been politically embarrassing and constitutionally amoral for Cabinet ministers  and Parliament Speaker to get to know of such decisions post facto and from media reports.

Emergency session?

If it was not for stalling COPE kind of parliamentary panel probes and their reports, then the inevitable question arises if the powers-that-be anticipated some kind of a constitutional coup when the President was overseas, especially more so if he was tending to his health. Did they expect the Opposition to demand an emergency session of Parliament, and was there a provision by which the Speaker was duty-bound to respond positively?

The Opposition most definitely embarrass the government first on three Cabinet ministers from alliance parties, namely, Udaya Gammanpilla, Vasudeva Nanayakara and Wimal Weerawansa, joining the Opposition and the civil society in filing petitions before the Supreme Court, challenging the constitutional validity of the Yugadanavi deal involving the US-based New Fortress Energy Inc. It could get worse now that the Attorney-General has moved the five-judge Bench hearing the case not to accept the fundamental rights petitions from the three ministers, arguing that there was no constitutional provision to support the same.

The AG should not be surprised if the court asks him return if there was any specific constitutional provision that denied incumbent ministers such a right – and by extension their fundamental right as citizens and political party leaders. Definitely, it is a piquant situation for the government, the court and the AG – not necessarily in that order – but then the AG’s submissions raises a more fundamental question if the President was urging to court to do what he did not want to do politically, that is sacking the three ministers.

At last count, the government got Budget-2022 passed by 157-63 votes in the 225-member Parliament. It means that even if there were mandatory provisions for the Speaker to convene an emergency session of the House to discuss, debate and vote on an emergency motion of no-trust in the government, there was no way the government could have lost.

Of course, the technical question would arise if such a no-trust motion would lie against the Prime Minister or the President, considering that the procedures and the required vote-counts are entirely different. While no-confidence in the government of the prime minister requires only a simple majority, a no-trust motion, translating as impeachment of the President, requires a two-thirds majority. There are long-drawn processes, too, which could not be completed without the President in attendance in town, if not in the House.

Offer to dissidents

For now, Tourism Minister Prasanna Ranatunga has said that the government was ready to discuss the Yugadanavi dispute with dissident MPs from within the ruling coalition. He has also indicated that the government was ready to discuss the issue with the Opposition, too, and it was also the reason why it had shared the agreement copies with political party leaders.

It’s a good move, even if late, but the Opposition especially is sure to ask if Minister Ranatunga was making the offer on behalf of the government, the President and Prime Minister, or not. In particular, he is as much of a Cabinet Minister as the three dissidents, only that he represents the majority SLPP leader of the ruling coalition. The question thus arises if the three dissident ministers would be satisfied with such proposals from one among equals or would want an invitation from either the Prime Minister of the President.

But the leadership’s problems may have been compounded if, as reports have it, a fair number of SLPP parliamentarians too are unhappy with the way the decisions are being taken within the coalition dispensation. In particular, they would be concerned about their re-election that is not due before 2025 as not only need the SLPP’s vote-bank but also want it to stay rock-solid. Two years after the presidential election, they are not as sure as they were post-Easter blasts.

There is no denying the 53-per cent vote-share acquired by President Gota when elected to the high office in 2019, and the ruling coalition bagging 60-per cent in the parliamentary elections the next year. The allies too cannot deny that they owed their parliamentary and ministerial berths to the mainstay SLPP leader of the ruling coalition, and not the other way round, as the undivided JVP could have claimed in Elections-2005, when PM Mahinda R won to become President for the first time.

The fact remains that the SLPP’s jealously-guarded, committed 40-per cent vote-bank from 2010-2020 owed it to the charismatic personality of Prime Minister Mahinda. The rest of the 13 per cent vote for victorious Gota in the presidential polls of 2013 came from the parent-partner SLFP, which had scored as many votes in the preceding nation-wide local government elections in 2018.

The SLFP, upset over a series of decisions, starting with the denial of Cabinet berth for party boss and former President Sirisena, has still declared that the party’s 14 MPs will not desert the government on crucial votes. They did not vote against the Budget, either.

Why then the prorogation? What or who is the government is concerned about, or is afraid of – if that is the phrase?

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com)