By N Sathiya Moorthy
The continuing constitutional debate, albeit through the media, on the options before the nation on continuing with the current covid-induced postponement of the parliamentary polls, has multiple sides to it. While such debate can more light on the subject, whether they can be decisive in any which way is rather doubtful. Predictably, such arguments often get identified along known party line of the writer/speaker, and that takes the real value that otherwise needs to be considered with an open mind.
One such argument is about either the President or the Elections Commission moving the Supreme Court for advice, on the kind of situation that may exist after 2 June, if by then the postponed polls (from originally scheduled 25 April) could not be held. The lateral option is for any political party or voter to move a Fundamental Rights petition, which may entail the Supreme Court to issue notice to the President and the EC, to seek their opinion and adjudicate it all, based on the facts, circumstances and constitutional mandate.
Instead, most of the immediate debate are centred on the constitutional premise that President Gotabhaya Rajapaksa should rescind his 2 March Gazette notifications, dissolving Parliament and fixing the poll for 21 April. Insulated from the realities of political Sri Lanka, it is a possibility that could be considered – both for its constitutionality and desirability,
‘Desirability’ is the key word here. Political parties and civil society organisations have begun urging President Gotabaya, his brother and Prime Minister Mahinda Rajapaksa, and also their ruling SLPP alliance to put the interests of the nation before self, and reconvene the dissolve Parliament, and hold elections on a later date. There are a couple of problems here, which are more in the way of practical issues for future consideration, without they being cited as precedents, later on.
It is up to President Gotabaya to take a call on such demands, suggestions and advice. It may then be for the Supreme Court to adjudicate on the matter, if approached. Granted that the COVID-19 is the kind of crisis that the world, and the nation have not seen before, does it mean that the precedent, if set now, will not be used to call upon the President of the day, to do likewise, when any political party, starting with the ruling party of the day, founded a sudden urge and need to do so?
There is then the more immediate danger of the political Opposition ‘ganging up’ against the Gotabaya Rajapaksa Government, nay that of Prime Minister Mahinda R, and move a no-trust motion in the re-convened Parliament, soon after re-convening or a few weeks down the line. Remember the way, then president-day rulers, then in the Opposition moved a no-trust move against then UNP Finance Minister, Ravi Karunanayake, forcing then President Maithripala Sirisena to dissolve Parliament, if only to avoid further embarrassment to the ruling party at the time, and the picture is complete.
The alternative now available to the rulers may not have been so in the case of then Prime Minister Ranil Wickremesinghe, that too, only five years back. If they are faced with the possibility of losing a trust-vote in Parliament, then the rulers are tempted – or, left without an option? – to ‘poach’ from the Opposition parties, to make up a majority in the House.
Through President Mahinda R’s ten-year term in office (2005-15), the Rajapaksas proved to be a past-masters at the game. It was not about their mustering a parliamentary majority after Mahinda became President, by wooing away 20 UNP members of the House, almost overnight. It is even more about the way they split the once monolith JVP ally, when the latter wanted to have the cake and eat it, too.
Though there may not been any truth in the speculation that the JVP was doing a favour to the LTTE whom the Rajapaksa-led Government was continually pushing into a corner in military terms, there is no denying the fact that the internal bickering in the ruling combine at the time, did divert the Government’s energies and national attention from what were seen as ‘national priorities’.
In the present context, when the UNP Opposition is vertically split, there are chances that the party may dissipate more than at the time of the presidential polls that they lost, if the Government side is forced to engineer defections, if only as a part of their survival-instinct. So, guarantees need to be given that it will not happen this one time at the very least.
Credit should go to the multiple Opposition parties, which were anyway teamed up against the Rajapaksas’ Government, for not pushing the issue on the no-trust front during the three-plus months between the presidential election in November last and new President Gota R’s dissolution of Parliament. Maybe there were reasons – like their own apprehension of losing members to ‘defection’ and cutting a sorrier face than already ahead of the parliamentary polls, which President Gota would have called any way.
Going back, what could be the guarantees that the Government could expect from the Opposition? Two, who could give that commitment, considering that the monolith UNP is divided and there is no knowing about the parliamentary strength of individual factions. It is another matter that even the undivided UP is still only one of the parties ranked against the Government, whether inside or outside Parliament.
Yet, one way could be for the Government to use the good offices of Speaker Karu Jayasuriya to talk to party leaders, to see if minimal Government business, say, like providing for immediate budget allocations overall, for a short duration, before the new Parliament, whenever elected, can pass a full-fledged Budget all over again…Of course, the immediate reason and justification would be to avoid a constitutional deadlock of the kind feared.
Under the circumstances, the President can reconvene the old Parliament, which in turn could sit for a day or two, pass minimal Government resolutions, say, by voice-vote and disperse. The President may then be expected to order dissolution, at any time of his choosing, afterward.
The alternative could be for the House to remain suspended after passing the minimal resolutions, as the case may be, and the President can dissolve Parliament all over again, once he is convinced that the covid pandemic is behind the nation – and there won’t be any necessity for reconvening Parliament all over again, to do such other, similar business, all over again.
But then, who can guarantee, either nor or later in the year, or even end of the year, that the covid pandemic threat is all gone and for good? There is this element called ‘passive threat’, which could come up weeks after the pandemic is neutralised, as things stand.
The fear of passive threat cannot be wished away as motivated sections of the social media will fan those fears. Then there is also the real threat of fresh bouts coming from outside the country, as and when the Sri Lankan skies are cleared and airliners are allowed to operate flights from and to, Katunayake airport. Given the global spread of the pandemic, it is anybody’s guess when a clear-clear will mean just that and nothing less.
It is the reality of the situation that should be considered in the matter. And maybe all heads should be put together and seek a way out. If it came to a constitutional amendment, pre-approved by the Supreme Court, as always ,that is again a possibility that should be considered on merits.
This is because the Constitution, while empowering the President to proclaim Emergency and also take over the administration, until the notification is rescinded, it also insists that the President sought monthly approval from Parliament to such a decision. And the question is all about the non-existence of a Parliament, and how to create/re-create one….
(The writer is a Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: [email protected])