Who will prevail, Sangha or Supreme Court?

By N Sathiya Moorthy

At a meeting with President Gotabhaya Rajapaksa, the Maha Sangha has said that there was no need for reconvening the dissolved Parliament, to meet constitutional exigencies. The Supreme Court is now seized of the matter, and the final verdict of the highest judicial authority of the land shall prevail.

Translated it could mean that the spiritual guidance offered by the Sangha may not hold if the Supreme Court were to hold otherwise. it would be a different matter if the Supreme Court finds constitutional sense in the known Government position that there is no such need to reconvene old Parliament, pending fresh polls and new House session – but before the inherent deadline of 2 June.

The deadline, as is known, flows from the Elections Commission’s earlier decision to postpone parliamentary polls that were originally scheduled for 25 April, without assigning a fresh date. The President having dissolved Parliament on 3 May, there is a constitutional compulsion for the new House to commence its functions within three months from then.

It is another matter that the Constitution, under 19-A, provides the President with the power to dissolve Parliament, without assigning any reason, within six months of the end of the term of the House. It used to be four years earlier. It is anybody’s guess why the previous Government and the dissolved Parliament did not study the rationale, if at all any, behind empowering the President thus, and stopped with tinkering the time-frame, alone.

Larger question

The larger question now is about the nature of the Sri Lankan nation, as different from the Sri Lankan State. The Constitution defines the State, and that is where ethnic minorities have their problems. They want a federal, if not a confederal set-up, which is not on, from a majority Sinhala-Buddhist perspective. The Second Republican Constitution, 1978, declared Sri Lanka as a ‘unitary State’, Buddhism as the ‘official religion’ and Sinhala the ‘official language’.

The latter construct flowed from a cultural construct that Sri Lanka, earlier Ceylon, was a Sinhala-Buddhist nation, where the majority of the people speak the language and follow the religion. The ethnic minorities, the Tamils all along and Muslims, from time to time, have had problems with such a construct.

The Tamils also fought a three-decade long war, and lost it. But they have not changed their views on the subject. Pushed to the wall by everyone else, especially with the ‘Easter Sunday blasts’ last year, the Muslims too are if’y about their political future and their own political approach to the prevailing majority/majoritarian concept of ‘nationalism’.

Nothing may go back to the past days of war, violence and terrorism, but the political issues have not been squarely addressed to the satisfaction of all stake-holders. This does not mean that they do not have a case – nor, does it mean they should not amend their positions to a halfway mark.

Cultural nationalism & constitutional nationalism

At the bottom of it is the basic premise if Sri Lanka’s is ‘cultural nationalism’ or ‘constitutional nationalism’. The day Donoughmore Constitution came into force in 1931, followed by the Soulbury statute at Independence and two Republication Constitutions of 1971 and 1978, whatever remained of ‘cultural nationalism’ became subsumed by ‘constitutional nationalism’.

This meant Sangha did not have a role in constitutional matters, as may have been the times of local royalty. However, as the two Republican Constitutions especially made out, ‘constitutional nationalism’ also accommodated some of the majority community’s cultural beliefs, priorities and prominence.

That is how the Supreme Court has repeatedly upheld aspects of cultural priorities embedded in the two Republican Constitutions, say, on supremacy of Buddhism as a religion and Sinhala as a language. This should not be confused with the stand-alone provision on the ‘unitary State’ as different from a ‘federal’ concept.

True, Sri Lanka, as many other nations and civilisations of the yore, had unitary States within its broader geography, all of them ruled by kings, whether they were Sinhala or Tamil. In a way, ‘unitary’ and ‘federal’ are alien concepts to the age-old cultural past of the nation and its people, again Sinhala or Tamil, or say, Muslims or Upcountry Tamils.

The problem with the Tamil minorities especially is that while talking about their political rights and demands deriving from them, they have also confused their own constructs by making ‘federal’ demand an extension of the same – or, worse still, born out of the same. They too need to delineate the two, as even with a ‘federal’ structure, a strong leader at the Centre with a brutal majority in Parliament, can enforce a ‘unitary’ concept without consent – and get away with it.

It has happened elsewhere, and it has happened in Sri Lanka. When JRJ disenfranchised Sirimavo Bandaranaike after obtaining a brutal majority in Parliament, he did not preside over a ‘unitary State’. When the very same JRJ got Parliament to extend its own life, again he did not depend on what had become a ‘unitary Constitution’ by then. He depended entirely on the brutal majority that he enjoyed in Parliament at the time.

Red-lines all the way…

In this background, should the Maha Sangha have voiced an opinion on a ticklish constitutional issue with no precedents in the country – and possibly elsewhere in the democratic world as well? This is because Sangha’s voice has a very definite social following in the country. But in matters of constitutional questions, the Supreme Court’s voice prevails, it has to prevail and should also be seen as prevailing.

In the recent past, there were two instances where the Supreme Court’s verdict went a long way to preserving the constitutional face of the nation, and the constitutionality of prevailing positions. Both of them have set a constitutional bench-mark. Of the two, the first flowed from an existing political position, the second from a political situation.

The first was on the lesser-known and even more easily forgotten verdict that a demand for federalism was not against the Constitution. It flowed from the long-held Tamil demand for a federal structure – which has no meaning without a federal culture in the nation’s psyche. The comparison with the US or some European nations is out of the question, as in those nations historic developments over the past centuries, and at times decades, dictated the present.

In the other, and the most recent one, the Supreme Court held in so many words that the President did not have the power to dismiss a Prime Minister or appoint a new one, without what is euphemistically called in democracies like the neighbouring India as a ‘floor-test’. That was when predecessor President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed present-day incumbent Mahinda Rajapaksa in his place.

The circumstances in which Mahinda R became Prime Minister when brother Gotabhaya was duly elected President by a vast majority last November was no different from the one in which Ranil Wickremesinghe had become Prime Minister in 2015. Yet, with the intervening Supreme Court verdict by his side, Wickremesinghe could have challenged the President’s decision in the matter.

The greater irony in the present situation is that even when the House was dissolved, the Rajapaksas did not have a majority in the House. Today’s clamour from a section of the political Opposition for reconvening the dissolved Parliament is to see if they could vote out the existing Government of Prime Minister Mahinda. A cheap trick, politically, but then they seem to be hoping that it could deflate the electoral confidence of the Rajapakasas, even if to a point – and not beyond.

Truth be acknowledged, the parliamentary polls, whenever held, will be voted upon on the public perception of the incumbent Government’s handling of the Covid situation on the ground. The economy is rotten, and it could get worse, but then the people are not unaware of the global situation – that at times a pinch in their pockets could pinch their tummies and hearts, too. Or, that seems to be the one hope of sections within the Opposition.

It is a sad and bad way to go about an issue, though they still have a point on the constitutional questions that they have raised. There can be no two way about it other than the Supreme Court having to come up with a view that is binding. That is what makes Sri Lanka’s ‘constitutional nationalism’, as different from ‘cultural nationalism’ – over and above it, too.

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headqurtered in New Delhi. Email: [email protected])

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