by PROFESSOR G.L. PEIRIS

March 23, 2017, 9:31 pm
What is evident for all to see is that Yahapalanaya has deteriorated today into the expression of a totally autocratic culture, in Parliament as well as in the country at large. Across the country vital elections at grassroots level are postponed indefinitely on the flimsiest of pretexts, while the situation in the nation’s highest legislature represents a caricature of the basic norms of a robust democracy.

Parliamentary proceedings in the first week of March were marred by several developments, all of them significant and some unique.

The Leader of the Joint Opposition in Parliament was suspended by the Speaker from the sittings of the House for a week. Police officers were brought into the Chamber to assist in his expulsion. During tenure of the Speakership of Chamal Rajapaksa and W.J.M. Loku Bandara, there was turmoil in Parliament on many occasions, involving not only verbal abuse but fisticuffs, repeated interruption of proceedings, invasion of the well of Parliament followed by sit-ins extending throughout the night, removal of the Mace and display of posters within the Chamber of the House. Regrettable as these events certainly were, not on a single occasion was any Member of Parliament, let alone an occupant of the Front Bench and the leader of a political party and Parliamentary leader of the group of parties comprising the Joint Opposition, suspended from sittings of the House. A police presence in the Chamber was not contemplated for a moment.

With no parallel whatever in Parliamentary history, in this or any other country, the government of the day walked out of the Chamber, signifying complete abdication of its responsibilities in the Legislature.

The following circumstances, presented with no embellishment, indicate the depth and gravity of the developing crisis with regard to fundamental democratic values.

I. Constitutional Role of the Leader of the Opposition

It is taken for granted in Parliamentary tradition and practice all over the world that the Leader of the Opposition must be seen as the head of an alternative government, an Administration in waiting, to replace the government currently in power. Not even the most extravagant imagination could credit Mr. R. Sampanthan, for all his sterling qualities, with this potential.

He leads a Party which counts no more than 16 Members in a Parliament of 225. The Tamil National Alliance, of which he is the head, polled a mere 4.6% of the national vote at the last Parliamentary elections. It is difficult to recall any instance when Mr. Sampanthan raised his voice effectively in Parliament against government policy, in respect of any national issue transcending matters pertaining to the Northern and Eastern Provinces. Having played an indispensable role in installing the present government in office, he is regarded by a wide spectrum of the public as an essential component of the government, resolutely committed to its continuation in power.

It is, therefore, hardly surprising that Mr. Sampanthan should turn out to be the only Leader of the Opposition, in any country at any time, to vote for a Government Budget, unreservedly and without moving any material Amendment to its contents. He also cut an incongruous figure when, as Leader of the Opposition, he voted in Parliament this month for the suspension from Parliamentary sittings of a senior colleague sitting with him on the Opposition Front Bench, who had persevered in his attempts to resist encroachment by the Government on the collective rights of the Opposition.

By contrast, the Joint Opposition, consisting of a broad coalition of parties stridently critical of the core policies of the incumbent administration, has demonstrably secured acceptance in the public mind as the authentic voice of the Opposition. Public exposure of Parliamentary debates provides ample testimony to this. And yet, the incongruous reality is that the leaders of these parties are denied facilities even in terms of office equipment, secretarial assistance and logistical support, all of which are essential for them to perform adequately the duties cast upon them by the voting public. It is surely repulsive to observe them in a position of dependence on the present Leader of the Opposition for access to these basic facilities.

II. Dimensions of the Nineteenth Amendment

The Speaker’s recognition of Mr. Sampanthan as Leader of the Opposition, flawed at its very root, assumes an even more serious dimension on account of a perspective relevant to the Nineteenth Amendment. Indeed, it would seem that his appointment was an initiative to subvert the principal objectives of this landmark legislation.

One of its much trumpeted accomplishments is the creation of a Constitutional Council, the composition of which is governed by the provisions of the Nineteenth Amendment. The Constitutional Council – which is entrusted with functions of the highest importance, including recommendation for the appointment of such key personnel as the Chief Justice, the Attorney-General, the Inspector-General of Police and Chairmen of the “independent” Commissions – consists of 10 members, with the Speaker as Chairman.

The Prime Minister and the Leader of the Opposition, who are members ex officio, are vested with responsibility for identifying 5 other persons to be appointed members of the Constitutional Council. The Prime Minister and the Leader of the Opposition, together with their 5 nominees, therefore comprise a group of 7 persons, making up an overwhelming majority of the total membership of the Constitutional Council.

The Speaker’s recognition of Mr. Sampanthan as Leader of the Opposition ensures that the government is comfortably able to have its nominees appointed to crucial positions in the public life of the nation. The country has seen the disastrous consequences of this state of affairs during the last 2 years.

The situation is further aggravated by the deliberate failure on the part of the Constitutional Council to comply with seminal requirements of the Nineteenth Amendment – for example, stipulation of criteria for the recommending of appointments (an obligation which the Council is compulsorily called upon to perform within 3 months, but has inexcusably gone by default upto now). The contrived absence of any norms or yardstick has enabled the government, acting through a pliable and accommodative Constitutional Council, to overlook when expediency demands considerations such as seniority without the assignment of any intelligible reason for a seemingly arbitrary choice. This has happened repeatedly, giving rise to growing cynicism and rapid erosion of public confidence.

III. Arithmetic of the Situation

The bizarre character of contemporary events is underscored by this factor. It is established principle in India that no political Party is entitled to the position of Leader of the Opposition unless that Party commands a minimum of 10% of the total number of seats in the House. The numerical strength of the Tamil National Alliance in Parliament is, of course, well below this threshold.

The absurdity of Mr. Sampanthan’s appointment is seen in sharp relief in the context of refusal by the Speaker of the Lok Sabha, upon formation of the Narendra Modi Government, to concede the post of Leader of the Opposition to the Congress, on the ground that the latter did not satisfy the mandatory criterion as to strength. By the same token, no Leader of the Opposition was named when Pandit Jawaharlal Nehru was sworn in as the first Prime Minister of independent India.

IV. Incapacitation of the Joint Opposition

By its very nature, the Joint Opposition is an umbrella political grouping which embraces within it a range of parties which, while subscribing to a common outlook and convictions in respect of major issues, advisedly retain their distinct identity. Sustained denial of their right to articulate their separate points of view on the floor of Parliament smacks of a stubborn affront to highly visible political reality.

The result of this attitude has been the unwarranted withholding from these Parties, and their leaders, of their due entitlement to adequate opportunity for participation in debates and in the work of Parliamentary Committees, as well as their right to raise urgent issues in the public interest under Standing Order 23(2), in adjournment debates and other contexts. The public were recently treated to the farcical spectacle of leaders of the Joint Opposition being compelled to hold a media conference in the Members’ car park.

The thrust of these circumstances goes well beyond deprivation of the legitimate rights and privileges, as such, of Members of Parliament: it impinges crucially on the aspirations of voters who returned them to Parliament and debilitates, in vital respects, the functioning of a vibrant representative democracy.

V An Unconvincing Policy Rationale

The argument repeatedly resorted to by the Speaker to explain and justify this state of things is the circumstance that all the parties comprising the JO contested the Parliamentary elections under the common symbol of the betel leaf. It is claimed that this results in their necessarily having to be looked upon as an inseparable entity governed by the hierarchy of the UPFA. The SLFP is the largest component of it, and more than one-half of its Members elected to Parliament on the UPFA ticket sit and vote in Parliament as the JO. The President of the country, who is also the leader of the SLFP, has fully acquiesced in these Members functioning in Opposition and voting against salient government measures including the Budget. Notwithstanding all this, it is contended that the SLFP hierarchy, which has entered into a Memorandum of Understanding with the UNP, has the unqualified right to exercise effective control over the decisions and actions of SLFP MPs forming part of the JO.

The anomaly to which this gives rise, is manifestly incompatible with established precedent in this country as well as overseas. In 1981, during a period of intense crisis within the SLFP, the elections authority determined that Mrs. Sirimavo Bandaranaike had legitimate control over the Party machinery. When action was sought to be taken, on the basis of this ruling, against Maithripala Senanayake and others who constituted the rival faction, the Speaker at the time, holding that the decision by the elections authority in this regard was not binding on Parliament, insisted on appointing a Parliamentary Committee to make its own assessment. Moreover, the course of events in India during the conflict between the two wings of the Congress, one led by Indira Gandhi and the other by Kamraj and Morarji Desai, is unmistakably at variance with the reasoning underpinning the decision by the Speaker.

VI Inspiration Derived from Precedent

The cardinal principle in this context is that the Speaker, as custodian of the rights of all Members of the House, should not only be entirely impartial but that his objectivity should be unhesitatingly perceived and acknowledged. The perception is just as important as the reality.

This essential attribute of the Speaker is firmly anchored in hallowed tradition, associated as it is with the iconic figure of Speaker Lenthall. During the civil war between King Charles I and his Parliament, the monarch, in his relentless pursuit of the leaders of the Parliamentary Party opposed to him, went with his armed entourage, demanded entry into the Chamber of the House of Commons and insisted that the Speaker should surrender his adversaries to him. The memorable words of Speaker Lenthall have reverberated through the annals of British and Commonwealth Parliamentary history. The Speaker, addressing the indignant King, declared: “Sire, I have neither eyes to see, nor ears to hear, nor tongue to speak, except that which this House commands”. Decisively rebuffed, the King could do no more than observe prior to his ignominious retreat: “The birds have flown”. The Speaker’s words, signifying the need for explicit manifestation of absolute independence of the Speaker of Parliament from any tinge of Executive patronage and influence, as a necessary condition for the integrity of Parliament itself, have clear resonance in our own country today.