Sri Lanka constitutional bombshell could return Rajapaksas to power

COLOMBO, (EconomyNext) – President Maithripala Sirisena’s sudden indisposition during the New Year holidays had politicians on both sides of the House considering a potentially serious constitutional bombshell.

The possibility of the Rajapaksa family making a come back, not just as members of parliament, but even as political masters of the country till 2021 has emerged a real possibility. Mahinda Rajapaksa could return as president through an entirely legal process.

Official sources say that President Sirisena was under the weather over the weekend after hectic shuttling between Colombo – Polonnaruwa and attending the funeral of the Asgiriya chief prelate. He only needed rest and there was nothing serious.

Although the 63-year-old Sirisena appeared to be in good health, his sudden illness raised questions among politicians about Article 38 of the constitution regarding the vacation of the highest office in the country.

It might be premature to discuss the vacation of office by the president, but if Article 38 does come into operation, the will of the people as expressed through the January 8 election could be turned on its head and democracy subverted through a skewed, but legal, process.

In the event Article 38 becomes operational in the present situation, the Prime Minister, at the moment Ranil Wickremesinghe, will automatically become President with the operation of Article 40 (1) / (a) for a maximum period of one month.

Within that period, a secret ballot will have to be taken in the 225-member parliament to elect one among them as the president to serve the balance term of the president. In this case, that would be till 2021.

With Ranil Wickremesinghe’s United National Party having only 42 members on its own, it is highly questionable if the current Prime Minister will enjoy an absolute majority in a parliament that does not reflect President Sirisena’s January mandate.

The current parliament represents the mandate Mahinda Rajapaksa received in January 2010 and he can still count on the support of a considerable section of the SLFP.

Rajapaksa loyalists could still bring him back to parliament. He cannot be brought into parliament through the national list because his name did not figure in it at the 2010 elections, but there is another way.

For example, if all eight candidates of the UPFA, including the four elected MPs from the Moneragala district were to step down, then an outsider could be nominated. This is how Nihal Galappatti entered parliament from the Hambantota district in 1994 as a member of the SLPF, a front of the JVP.

Even if a legal challenge keeps Mahinda Rajapaksa away from parliament before the one month presidential election is held, eldest brother Chamal Rajapaksa could step into the fray and, on taking the top job, could call a fresh election with younger brother Mahinda as PM candidate.

At that stage, the SLFP and the Rajapaksas may be amenable to transfer executive powers of the president to a prime minister.

Either way, the Rajapaksas  could, in theory, be governing the country till January 2021.

A hale and hearty Sirisena would be back at work this week and is due to attend a national ceremony marking traditional oil anointing, but it may not stop some politicians licking their chops while making others very nervous.

Unless the government moves for a quick election to secure a mandate that is in line with the will of the people as expressed at the January presidential election, the New Year will usher more uncertainty.

The relevant constitutional provisions could be found here: see Articles 38 and 40.