Gajalakshmi Paramasivam

17 December 2018

The Governor General and the President

Fundamental  rights include the right to think in orderly manner, so that we would mind-merge with others to function as families, institutions, communities and nations. When fundamental rights of a family are  upheld by that family –top down through autocracy and/or bottom up through democracy, that family naturally merges with other structures – including global structures. Where it uses largely bottom up democracy – it merges laterally with other families. Where it uses more top down power of autocracy – it merges vertically with higher structures. The powers get shared through the system of Nature / Truth. The experience of such families is high. When I received email from Australian Labor Leader Bill Shorten last night – I felt that it was confirmation of National level participation by our family – functioning as a sovereign family.

Yesterday a fellow Australian of Sri Lankan-Sinhalese origin shared with me his feeling of ownership at that level – through the appointment of General David Hurley as our new Governor General. To my mind, it was because of our mental participation of the workings of the Sri Lankan government that affect us in common at global level.

As per Guardian report  headed – ‘Queen appoints Australia's next governor general, with calls for it to be her last’ this was an autocratic appointment:

[Morrison said Hurley was a “stand-out candidate” who was “known for looking people straight in the eye. Not up and not down.

“I had only one choice, my first choice, and he is standing next to me,” Morrison said.

Australia’s Labor opposition leader, Bill Shorten   had been “informed but not consulted” about the appointment.]

But on that same day, when PM Morrison became the queen’s voice – Mr Shorten connected laterally to migrants with strong investment in democracy. That is how we mentally share our energies with each other.

The Sri Lankan President is reported to have yesterday expressed as follows in bringing about closure to the political crisis in Sri Lanka:

[President Maithripala Sirisena today said that he has given the Premiership to Ranil Wickremesinghe while honouring the parliamentary tradition and democracy.
Speaking to UNF representatives after the swearing-in ceremony of Wickremesinghe as the Prime Minister at the Presidential Secretariat, the President also said his previous statement on not appointing Mr. Wickremesinghe as the Prime Minister even if 225 MPs support him (Wickremesinghe) was his personal political opinion. “I still maintain that position,” he said.] Daily Mirror article – ‘Premiership given to Ranil to respect democracy – Prez’

The personal political feeling would naturally be shared with others who would also strongly oppose Mr Ranil Wickremesinghe. To be valid, such opposition needs to be within a common structure of sovereignty. Conscious Opposition motivates us to be active at that level. Express Opposition motivates to ‘show’ more and more of our investment in that sovereignty – generating lateral spread of motivation to own.

In Australia, the Governor General  is appointed and the Prime Minister is elected by the people and the party. Election is a bottom up appointment. No voter has the moral authority to appoint someone on the basis of merit – in such a way that the appointed person would be taller than the voter. Hence a voter who is self-governing would confirm absolute value when s/he votes through belief which is the source of our moral authority.  The leader in turn needs to be at least as tall as the tallest voter from her/his electorate. Where there is a ‘gap’ between the leader’s capability and the tallest voter – the leader fills that gap through her/his own vote. Where the voter is taller than the leader  in general and/or in particular issues – the leader would need to consult with that voter, in order to work the whole.

The need for democracy came about due to leaders being shorter and shorter on merit basis which then stunts our experiences. This was the case between the President and the Prime Minister of Sri Lanka. Mr Rajapaksa would not be himself if he bowed to the voter. He bows to the Buddhist clergy and they have high status including through the Constitution. But Mr Sirisena is more humble and hence he accepted Madam Kumaratunga’s leadership and mentoring. But when the lady became less and less active in her advisory role, his mind went back to the past – in which he was junior to Mr Rajapaksa and in fact who also elected Mr Rajapaksa within the party SLFP.

For Ranil’s part he accepted  Mr Sirisena as President but did not include him as part of his group. The block is due also to political need for diversity. This dilemma is faced by many of us in areas where militants were rulers. The heirs of militants tend to confirm autocracy, the same way Mr Sirisena – the heir of Sinhalese autocracy does. They would become exceptionally wise – provided they did not take benefits by claiming to be  democratic.

Mr Sirisena demonstrated that he thought that he had the power to appoint. When he opposed Mr Wickremesinghe in his mind, his own investment in democracy would have been insufficient to raise his expressions to national level and beyond. But with Mr Rajapaksa he would have had the energy to be strongly autocratic. But as per Mr Rajapaksa’s character – Mr Sirisena would have become the Prime Minister’s junior, irrespective of holding the higher position.

Our Australian Prime Minister – even though s/he would have been the would-be Governor General’s boss at one time – reverses roles – not on merit but on the basis of stronger governance. In other words, the Governor General has to be seen as one with stronger governance power that the prime minister. Highest power in Defence area usually remains with the President / Governor General and we Australians seem to be more and more conscious of strong governance power being needed in this area – as confirmed by military personnel becoming Governor Generals.

At the moment – as representative of the queen the Governor General is ‘seen’ to have such powers. We Australians are yet to go through the test that Sri Lanka went through recently which problem was waiting to happen when Buddhist monks who claim to be the representatives of Buddha and therefore are the parallel of the queen, became active in politics at lower levels. One of them shot dead the founding leader of the SLFP – the Hon SWRD Bandaranaike – the fourth Prime Minister of Sri Lanka.

Executives actively using their powers confirm low level of Democratic Governance. In Democracy – there needs to be least use of executive powers and hence defeat internally that would confirm a weak picture of the whole nation to outsiders – even if no clear verdict is pronounced – for example as the Supreme Court did recently in the case of Sri Lankan President’s decision. A tall and strong constitution, actively practiced,  protects the nation from outsiders. We Sri Lankans proved our strength through the current crisis which is now further  opportunity to globalise ourselves.

 Often those whose immediate family are heirs in politics would tend to be autocratic and hence would have great difficulty in adjusting to true democracy.

A person who is treated as governor – as confirmed by others taking their oaths before her/him – has no authority to exert executive power over that oath-taking officer. Immunity is applicable only to the extent one is a governor. One cannot be governor as well as executive in the one issue at the same time. Hence when President Sirisena ‘dismissed and appointed’ Prime Ministers – he lost the protection  of presidential immunity. This is confirmed by Articles 35 (3) and 44(2)  of the Sri Lankan Constitution as follows:

[35 (3) The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44…………………….

44 (2) The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1) of this Article or the provisions of paragraph (1) of Article 45 and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President.]

Any member of Parliament – starting with the Prime Minister and the Ministers who were replaced by Mr Sirisena and Mr Rajapaksa  – could have brought action against them and Mr Sirisena specifically would have been without the protection of Presidential immunity.

This fundamental  Doctrine of Separation of Powers between Governance and Executive  needs to be clearly addressed in the next amendment to the Sri Lankan constitution if Presidential immunity is to continue.

At provincial level in Sri Lanka  – the Governor is not entitled to any Administrative power other than those delegated by the President from her/his own portfolio. But Mr Reginald Cooray – the current Governor of  Northern Province of Sri Lanka confirmed indiscriminate encroachment into other areas – especially Administrative and Development work which is the  Chief Minister’s area. http://www.dailynews.lk/2018/10/16/features/165584/reginald-cooray-bares-myths-north. This happened about 10 days before the political crisis at national level – confirming the risks in free movement of energy between the leader and the delegate. The Chief Minister of Northern Province is the parallel of the Prime Minister at National level.

 It’s a pity that Mr Wigneswaran failed to contest the powers exercised by Mr Cooray  - as being in breach of his (Mr Wigneswaran’s) fundamental rights. Mr Wigneswaran or any elected member of Northern province has the duty to lead Northern citizens in this. Mr Sumanthiran who was part of the group that challenged has thus far demonstrated lack of courage and/or ignorance in this regard. Northerners are capable of strong structures provided they pay their respects to their elders in Administration.