While the government wants early elections despite mixed reports about its handling of the COVID-19 crisis — the opposition wants the polls postponed.
Even as most of the world is caught in the vortex of COVID-19 pandemic’s ‘death dance’, Sri Lanka is facing an equally challenging constitutional question, on the conduct of the delayed parliamentary polls. The nation is slowly but surely learning to accept that the virus attack is here to stay for more time than it was ready to accept, while the focus is also turning to other issues of long-term concerns. The critical polls fit the bill, so does the tottering economy, which the government of President Gotabhaya Rajapaksa had inherited.
President Rajapaksa fixed 25 April for the polls, when he dissolved the Parliament on 2 March, under powers vested on him under the Constitution. The 19th Amendment piloted by the predecessor government and passed by the dissolved Parliament only reduced the term for such ‘arbitrary dissolution’ by the President from four years of the five-year term to six months. For complete abrogation of the provision contained in the Second Republican Constitution of 1978, the proposal needed to be approved in a national referendum. The earlier government did not have the confidence to do so though they had won the presidential polls the same way only months earlier.
In this background, the Election Commission (EC), under powers vested in it under the Constitution, postponed/countermanded the polling date indefinitely, as it did not assign a new date for the purpose, in the face of the COVID-19 threat that had erupted full blown by then. The hotly-debated question now is not only about the date of polling, but more so about the practicality of having them early in the midst of an emerging constitutional crisis.
In the ordinary circumstances, opposition parties often blame the government for finding ways and reasons to delay elections. But in this particular case, the government leadership wants early elections despite mixed reports about its handling of the COVID-19 crisis, but the opposition wants the polls postponed. Instead, they want the dissolved Parliament reconvened, under specific provisions of the Constitution but the government is not at all keen to oblige.
Postponement of polls at other levels is not new. The predecessor government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe managed to postpone the provincial council polls in all nine provinces by three years. Then President J.R. Jayewardene even got Parliament packed by members of his United National Party (UNP) to vote in a year’s extension, in the eighties, citing the ongoing war on the LTTE as among the reasons.
But nothing like this one has happened, even when incumbent President Chandrika Bandaranaike-Kumaratunga, seeking a second term, suffered serious injuries in an LTTE bomb blast. She survived the attack, was flown to the UK for an eye-replacement surgery and won the re-election, hands down. Today, unlike what the government hopes for, the pandemic is only spreading, and even defence personnel put in charge of crisis management at the national-level and residents of their native villages have not escaped the threat.
The urgency for an early decision in the matter flows from a constitutional provision. It is also the cause for concern about a possible constitutional deadlock. Under the Constitution, elections have to be held within six months of the dissolution of Parliament. The new House should meet within three months of the date of polling.
The opposition argued that 25 April being the original date of polling, the new Parliament should meet by 2 June at the latest. In between, the EC has since postponed the poll-date to 20 June, which falls within the six-month deadline granted under the Constitution from date of dissolution.
However, the opposition argues that the President alone has the constitutional right to fix polling-date. The other version is that once the date of polling is originally fixed, the EC is empowered to shift it to another date, depending on the existing emergencies. The implication is that with the new polling date fixed, the new Parliament will have to meet only three months hence.
Even without the continuing debate, both by the political parties and also the formal and social media, without dissolution, the term of the old Parliament would come to an end by 2 September, and fresh elections could not be avoided. The government is not saying it in so many words, but seems to have concluded that between June and August, giving the EC the required 35-day preparation period, the elections cannot be postponed indefinitely.
By saying so, the government has sought to give the impression that it wants into the serious business of governance, particularly the management of the economy in the post-COVID-19 world, quick and fast. The government was not sure of getting a budget passed in an opposition-controlled Parliament, and that is also becoming an issue.
President Gotabhaya’s office has since claimed that the high office had the powers to provide for three-month expenditure from the consolidated fund, from the date of polling to the first session of the new Parliament. The ruling SLPP is anxious that in the guise of getting dissolved Parliament reconvened, the joint opposition should not seek to move a trust-vote and defeat the leadership of Prime Minister Mahinda Rajapaksa.
Even then, no constitutional harm would come to President Gotabhaya, his brother, but the political embarrassment could cost the ruling combine dearly in the election, whenever held. The alternative is for the President to promulgate a state of emergency under the Constitution, but under the existing scheme, not only it has to be approved by Parliament, but can be voted upon by the month.
The debate had commenced with suggestions for President Gotabhaya to seek the Supreme Court’s ‘advisory opinion’ in the matter. Parliament also has such powers, but with the House dissolved, the question does not arise. However, government began by declaring that there was no need to approach the higher judiciary, and that the EC was well within its right to fix a new date for polling. It is another matter that after fixing 20 June as the fresh date of polling EC Chairman Mahinda Deshpriya also indicated that they would consider if they would have to cancel it again, closer to the date, owing to the pandemic crisis.
For now, former Prime Minister Ranil Wickremesinghe has gone to town, promising not to try and topple the government if the dissolved House is reconvened. He has also reassured the government about complete cooperation in Parliament, only with the purpose of avoiding a constitutional crisis. But Wickremesinghe does not carry much political weight these days.
The simmering discontent within the party came out in the open after the dissolution of Parliament, with a breakaway ‘popular section’ forming a new party SJB under the losing presidential candidate and then sitting minister, Sajith Premadasa. Most, if not all of UNP’s poll allies have also joined hands with Premadasa, whose LTTE-slain father Ranasinghe Preamadasa was President three decades ago. Sajith is unwilling to give the kind of commitment that Wickremesinghe is publicly offering the government.
In the midst of all this, a new line of thinking too is floating around. That is for a reconvened Parliament to amend the Constitution (unanimously?) and extend the term of the House by another year, so that the nation could expend its full energy to pandemic-fight. As a sop, some even offer a palliative for President Gotabhaya by offering to extend his term too by one year, to the original six years, but reduced to five by the 11th Amendment.
The government is keen on obtaining a two-thirds majority to revisit the Constitution in the light of the ruling combine’s experience in the previous years in the opposition. In the midst of COVID-19 fight, they are confident of pulling off a two-thirds majority still in fresh polls, particularly if held early on.
If the present-day, divided opposition too is not unwilling to consider a term-extension for the dissolved House, if reconvened, it could imply that the government party cannot resist the temptation of engineering large-scale defections to shore up the numbers in the following weeks, without waiting for months. The Rajapaksas are past-masters at the game, but just now they do not want to lose the moral authority of a convincing win in the presidential polls and also end up dancing to the tune of defectors, now or later on.
In doing so, they will also be faced with the additional problem of having to accommodate the ‘defectors’ in favour of party loyalists through the critical five years while in the opposition, when it comes to party nominations for fresh elections, which would any way have to held some time next year. In between, they all face the common threat of the Supreme Court not approving of such a term-extension, if and when moved. Already, the court has been moved in the matter of delayed elections and seeking a direction for the President to reconvene the dissolved Parliament.
This commentary originally appeared in South Asia Weekly.
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N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.
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