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9 JULY 2022: THE DRAMATIC TURNING POINT IN NATION’S CHEQURED HISTORY

The nation awaits Parliament’s new President on July 20 after peoples’ peaceful struggle forces Gotabaya to resign from office

The Lankan Lion Flag proudly fluttered from the rooftop of the President’s House last Saturday but this time it was held by its true owners: the sovereign people of Sri Lanka.

It was the day Sri Lanka came of age. The day the people finally won their battle colours and proved worthy to be the masters of their destiny.

People power had successfully done what Parliament with its 225 members had failed to achieve with hollow chatter. It had shown that a President’s tenuous legal right to remain entrenched in office after he has lost the people’s mandate cannot withstand the irresistible force of public opinion.

Five hundred years of colonial rule had sapped the nation’s defiant spirit, robbed the flame of her primordial fire. Not even the formal break of independence in 1948 had served to rekindle the flare. The independence gift had been granted on a platter to a nation that had meekly stayed to reap the reward of India’s mass struggle for liberation. Lanka had found her freedom by a quirk of fate – as a leftover from another’s battle – but it had left her still enslaved to the servile mentality of the feudal peasant.

But July 9 was the nation’s Magna Carta, the climax of a people’s mass concerted struggle to win their Bill of Independence with blood, tears, toil and sweat dedicated to the effort; a day to be not forgotten but the triumphant hour to be engraved in the nation’s collective conscious as the day the people finally found their true release.

But even before a celebratory toast could be raised, it became clear that the struggle was far from over and that another outburst of people power was needed to deliver the final purge. Many held that a fraud on the nation had been perpetrated in the aftermath of the President’s fugitive flight.

After reportedly being on a naval ship at sea, Gotabaya returns to land on Tuesday and spends his time kicking his heels at Katunayake Airport’s Silk Route VIP Lounge waiting to board the 6.45 flight to Dubai. He misses the scheduled commercial flight due, according to unconfirmed reports, to protests by passengers and a boycott of the immigration staff. Finally, in the cover of night, he sneakily boards a military aircraft and flees the country in disgrace and certain persecution to Male at 0115hrs. Lankan time.

He arrives in the Maldivian capital in the wee hours of Wednesday morn. Later he is met by a crowd of protesting Lankans, which includes Maldivians. One of them refers to him in the most derogatory terms found both here and in the Maldivian vernacular, normally reserved for the lowest of lowest scum of the earth. Technically still the President of Lanka, 22 million Lankans have to bury their heads in shame but know in their hearts the epithet is apt.

The wheeler dealer, big time operator Maldivian Speaker, Nasheed who was once granted refuge by the Rajapaksas, returns the favour and claims he is the one who negotiated Gotabaya’s great escape to Male.

The Times of India on Wednesday quotes ‘reports say that initial requests to land a military aircraft in Maldives were refused by the Civil Aviation Authority in Maldives but later it was authorised on the request of Speaker Nasheed.’ The Indian Express claims that same morning, ‘Gotabaya even sought India’s support in facilitating his exit. He was looking at taking a Sri Lankan Air Force AN 32 or a commercial flight to land in Cochin, India’ but India had rejected the plan.

The Indian High Commission on Wednesday morning tweets that it ‘categorically denies baseless and speculative media reports that India facilitated the recent reported travel of Gotabaya Rajapaksa out of Sri Lanka. It is reiterated that India will continue to support the people of Sri Lanka as they seek to realise their aspirations for prosperity and progress through democratic means and values.’

Simultaneously, the Hindu newspaper quotes a top official as saying that the US had rejected an entry visa to former dual citizen Gotabaya who renounced his American citizenship earlier. China stays mum as if it couldn’t care less to what happened to Gota and his clan, now reduced to wandering nomads. Maldivian Government officials make it a point to insist that he is in Male only ‘on transit’.

Hardly the stuff of a legitimate President travelling abroad is it, with host nations bending over backwards to welcome him in keeping with protocol reserved for a visiting Head of State? Even if he had carried with him the staff and sceptre of office, none gave him, who had fled his throne in shame and dishonour, a fig. He had lost his legitimacy in international eyes. Now he was a persona non grata, unwelcome and unacceptable, reduced to the status of an international pariah.

But back home it is different. While the world had already pronounced judgment and dismissed him as a good for nothing scoundrel who, along with corrupt family, had plundered the country and left it bankrupt and its people beggared, a banana republic dictator who was fleeing his nemesis and justice, here, in Lanka, his courtiers still robe him with the cloak of sanctity, still believing the future fate of the nation hangs suspended on his every move and breath.

Here, in Lanka, like tiny tots at a Montessori, waiting anxiously to hear news of their parents who had maliciously deserted them, comforted and occasionally fobbed off by their minders that the parents had called, and pacified from time to time that things will turn all right at the end, the people wait, believing they are still subject to Gotabaya’s dictates as he spends his time holed up in Male searching for a Saudian oasis to pitch his tent, dictates his rag bag government unquestioningly holds as presidential fiats.

Article 37 of the Constitution is raised. The fiction is created, the narrative holds that until he has formally resigned, the constitution is powerless to remove him; and the nation must do his bidding even though exercised by remote control through his prime ministerial avatar.

Shortly after 1.30pm, while the nation is demanding the resignation of the President and his Prime Minister, it is announced that Gotabaya in Male had invoked article 37(1) of the Constitution and appointed the Prime Minister Ranil Wickremesinghe as the acting President with all the powers vested in that office.

The Speaker in a brief statement says:’ “Because of his absence from the country, President Rajapaksa told me that he has appointed the prime minister to act as the president in line with the constitution.”

Article 37(1) states that if the President is of the opinion that by reason of illness, absence from Sri Lanka or any other cause is unable to exercise, perform and discharge the powers, duties and functions of his office, he may appoint the Prime Minister to exercise, perform and discharge the powers, duties and functions of the office of President during such period.’

First was this appointment valid? On July 11, the President’s office had announced that President Gotabaya Rajapaksa will only communicate through the Speaker. The Lankan people, in whose name all presidential acts are made, thus learnt of Gotabaya appointing Ranil the acting President because the Speaker had told them that the President had told him that he had appointed Ranil as acting President.

Similarly, it has to be that Ranil ordered the new proclamation be published in the gazette because – as per the Presidential communique on July 11 – he had been officially told by the Speaker that the President had told him that he has been appointed.

Smacks of hearsay, doesn’t it? The sort of evidence judges hold as inadmissible in court?

Apart from the Speaker saying, ‘President Rajapaksa told me he has appointed’, was there some documentary evidence, any official statement to that effect to support this assertion? If there was, as per the Speaker’s announcement on Thursday night that he had received the President’s resignation letter through email and needed time till Friday morning to conduct legal verification before formally announcing it, were the same thorough scrupulous checks done on the appointment letter before formally announcing it? Was the declaration of emergency law islandwide done without these basic checks, without any transparency?

Secondly, Article 4(b) states ‘the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People’.

Can the Executive President who is directly elected by the people, appoint under Article 37, any person not elected even to Parliament but appointed to Parliament by a party from the National List, and vest him with all the ‘executive powers of the people’ that ‘shall be exercised by the President elected by the People’? Doesn’t that amount to a travesty of the people’s sovereign will?

Thirdly, the golden thread running through the constitution is that the President shall exercise his powers in the interest of the people. This finds explicit expression in Article 27‘s ‘Directive Principles of State Policy and Fundamental Duties’, whereby the State is pledged to promote the interests of the people in every sphere of activity.

Fourthly, was due regard paid to the circumstances surrounding the President’s absence from Sri Lanka’ which made him ‘unable to exercise, perform and discharge the powers, duties and functions of his office’?

Consider the following:

Can his furtive flight from Lanka,

can his communication to the Speaker that he will resign on Wednesday,

can his rejected requests to other countries for even ‘on transit’ visas,

can the Indian Government’s categorical denial that India facilitated the recent reported travel of Gotabaya Rajapaksa out of Sri Lanka and its reiteration that India supports the Lankan people to realise their aspirations,

can his continued search for safe asylum,

can the collective will of the sovereign people of Lanka so manifestly evident not only at the occupied President’s House or at Galle Face Green but throughout the nation demanding his resignation and that of his Prime Minister,

can the realities of the ground situation

be ignored altogether when first determining whether Gotabaya Rajapaksa has either forfeited his right to invoke Article 37(1) or had been rendered ‘unable to exercise, perform and discharge the powers, duties and functions of his office’ to make any legally valid order?

Is the law so sterile that it can only be clinically applied at the exclusion of ground realities? Especially when it may well result in incongruous conclusions discordant with the benevolent spirit of the Constitution and its greeting Svasti, dedicated to the sovereign will of the people by its original framers:

‘We, the freely elected representatives of the people of Sri Lanka, in pursuance of such Mandate, humbly acknowledging our obligations to our People and gratefully remembering their heroic and unremitting struggle to regain and preserve their rights and privileges so that the Dignity and Freedom of the Individual may be assured’

It seems the constitution has become somewhat of a 5-star hotel’s Sunday buffet where its avowed protectors are free to partake the choice delicacies and ignore that which give them bad indigestion.

Instead of being beholden to the decrees of a disgraced President and regarding the nation bound by his purported dictates and accepting Article 37‘s Clause 1 as the sole governing section, why couldn’t this nation assert her dignity by invoking Clause 2 of Article 37 and taking matters boldly into her own hands?

Article 37(2)’ states that ‘if the Chief Justice in consultation with the Speaker is of the opinion’ that the President is temporarily unable to exercise, perform and discharge his duties and is ‘unable to make an appointment in terms of paragraph (1) of Article 37, he shall communicate in writing his opinion to the Speaker and thereupon the Prime Minister shall exercise, perform and discharge the powers, duties and functions of the office of President during such period’.

This also provides that if the Prime Minister is unable to act as President – perhaps if the Chief Justice so holds in his written opinion, that only an MP elected by the people is even remotely eligible to exercise the executive powers of the people elected by the people – then ‘the Speaker shall be the acting President during such period.

With the self-exiled President’s formal resignation announced on Friday ending the ongoing constitutional scandal, all this may be of only academic interest now. But these questions must be raised for the unthinkable has happened and – as per Murphy’s Law ‘that whatever that can happen, will happen’ – may happen again. At least next time, let us be prepared and so conduct ourselves that we do not invite the world’s scorn.

Now that Article 40 has automatically paved the way for the vacant presidential office to be occupied by the Prime Minister as the Acting President for five days, the nation awaits Parliament to elect a new President to serve the remainder of the resigned President’s term. These 225 MPs will be constituently exercising the right of what is generally the right of 22 million people of Lanka to elect the President of their choice.

Each one of these MPs should consciously be aware that they are exercising the delegated franchise of the sovereign people of Sri Lanka; and exercise that sacred right of the people to ensure a result that does not distort but truly reflects the will of the people.

As for six time Prime Minister and, now, also the twice appointed President within two days, Ranil Wickremesinghe who has thrown his hat into the ring hoping to better his own unassailable record to become thrice President of Lanka within a week, his chances have immeasurably risen with the Rajapaksa party, the SLPP surprisingly pledging him its powerful support as the party holding the majority seats in Parliament, despite its own member, Dulles Alahapperuma announcing his candidature.

But before Ranil Wickremesinghe officially adds his name to the list, it shall be wise for him to consider the moral implications surrounding his bid – as a defeated candidate at the last general election – with his own party, the UNP, similarly rejected by the people, and only there in Parliament through the party’s national list – to aim for the highest elected office in the land by riding piggyback on the discredited Rajapaksa party.

However tempting the prospect, Ranil should beware that Heaven’s malice grants ambition’s prayers.