7 July, 2020

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A Constitutional Solution To The Impending Constitutional Crisis

By Jayadeva Uyangoda

Prof. Jayadeve Uyangoda

The threefold crisis that our country faces— public health, the constitutional, and political—is exacerbating day by day. In the latest development, a number of soldiers of the naval and special task forces of the Welisara and Seeduwa camps, who have been on front-line duty, have contracted the virus. At the same time, the epidemic has begun to spread in villages hitherto untouched by the virus outside Colombo and among low-income neighbourhoods in the Colombo city. These developments have further compounded the already complex problems caused by the coronavirus pandemic.

The government’s militaristic thinking and mind-set have led to the following policy consequences:

* Instead of obtaining the assistance of the armed forces to manage the behaviour of civilian populations as required during a public health emergency under the leadership of a civil administration, the civil administrative structure itself has been placed under military authority.

* The basic difference between a ground war against ‘terrorism’ and a civilian operation against a virus in order to restore public health under conditions of a pandemic was ignored.

* It is, in fact, unimaginable that the only protective gear provided for soldiers who went in search of and eventually captured those suspected corona-contracted individuals did not have personal protection equipment except face masks. Allowing these troops to go back to their villages on leave with no precautionary quarantining or strict health advise shows an inexplicable disregard for the dynamics and behaviour of the coronavirus. It is important to understand that there is only a very limited role that the military uniform and the automatic gun can play in this very different ‘war’ against a very different ‘enemy’, the corona virus.

Another expression of the President’s strategy to defeat the corona epidemic through a militaristic approach was the belief that he could conclude this ‘war’ too unilaterally, in accordance with his own political agenda, and that he and his close circles alone being entitled to the glory of the victory. The President must at least now be open to accept at least the basic differences between these two campaigns of ‘war’.

No military-type solution

This new situation sends an important message to the government as well as the President—that there is no military-type solution to the public health crisis caused by the spread of the coronal epidemic. The President launched the ‘war’ against the corona virus, comparing it with the successful military operation that defeated LTTE terrorism. However, what observers speculated upon hearing his statements on television is now, unfortunately, being affirmed; that a military approach does not solve, but rather can even worsen, the problem that could go beyond its public health parameters and in turn lead to crises in other domains as well

It is now time to take a critical look at the strategy that has been implemented so far by the President and his military and medical advisors with regard to the corona public health crisis. The first phase of the government’s strategy does seem to be now over, of course with success in a range of areas. Paradoxically, it has not brought about rapid normalization as promised by the President and his team. Initial successes in the public health front are paralleled with a range of social problems that still await acknowledgment. 

Meanwhile, the pandemic itself is threatening to enter into the phase in which the socially vulnerable communities are its chosen victims. It has begun of late to target the urban poor and the working class as well as the rural poor, indicating that the pandemic has begun to operate along class cleavages. The President’s acknowledgement of this social reality of the public health challenge should be the first step towards such a review. The second phase should be designed only after recognizing that there can be no military approach to solving this crisis which is now spreading into political, constitutional, economic and social spheres as well.

Acknowledging that there is no military approach to solving the pandemic-induced crisis of several levels is not to say that the military and the police have no role to play in managing the public health crisis. It only means that the military approach as well as the militaristic thinking, calculations and mind-sets should no longer dominate the government’s overall thinking as well as its immediate strategy to manage the public health crisis. The limits of the military mind-set are likely to be particularly pronounced in the President’s handling of the political, constitutional and social dimensions of the general crisis precipitated by the public health crisis.

A New Approach

A  non-militaristic and medium-term strategy to contain and eventually end the present crisis is urgently needed. The first element of such a new strategy should be to demilitarize the present ‘operation’ that has been launched. As mentioned earlier, this does not mean the removing the armed forces and the police from the duties of public security or functions relating to maintaining the law and order as well as medical and administrative emergencies. After all, emergencies are about bringing the defence sector of the Executive to perform security as well administrative duties that are under normal circumstances allocated for the civilian employees of the state. However, their participation should be regulated within a framework of a structure under the joint leadership of civil administrative officials and representative participations of medical experts. 

An example of civilian leadership over the military in peace times is the mobilisation of the police and armed forces during the election period under the direction of the Election Commission. The guiding governance principle here should be the civilian control of the military’s role in the public health emergency. Meanwhile, the GMOA’s role in formulating the President’s strategy has already become controversial and there is a growing sense that broadening of the stakeholder participation in decision making has become urgent.  

The second element of the new strategy should be creating a situation in which the President begins to open up and widen his political reach while allowing a critical public discourse on the government’s performance. This means that his current suspicion of and rivalry against opposition parties is suspended and that he enables the government strategy to benefit from a broad spectrum of political and policy consultations, ideas, policy inputs as well as disagreements and debates. Such a shift in basic political attitudes in a moment of exceptional global and national crisis should enable a measure of constructive cooperation between the President and the opposition political parties and other stakeholder communities. Although this is too much to expect from the President, the point still needs to be made.

The bitter rivalry between the present ruling party and the opposition political parties was heightened during the presidential election. It continues to cast its dark shadow over the political landscape. This relationship of enmity between the two main camps of Sri Lanka’s political class has also caused a deep mutual mistrust between them. It has now led to a situation in which the parliament and the executive –two main organs of the state – are once again thrown into an unnecessary power struggle. The hostility that the President’s camp has been showing towards the institution of parliament under the present constitution only bodes ill for Sri Lanka’s democratic constitutionalism. 

The present public health emergency, the future directions of which remain uncertain and unpredictable, should not be the moment for such a breakdown of relations between two key organs of the state, because it will have grave consequences for democratic governance. Instead, challenges presented by the current crisis should be managed through more, and not less, democracy. That is also why the government’s military approach to the corona crisis needs to be replaced by a more open, consultative and civilians-led process in which all opposition political parties too have space for participation.

Thus, in the current context in which the Parliament is dissolved and kept inactive, and where the only branch of the state structure that remains active, actually super active, is that of the Executive, headed by the President. Therefore, it is not at all a bad thing for the President to open himself up politically and reach out to his political rivals and many others outside his own close constituencies. Such democratic openness will also ensure that not only the credit for success, but also the blame for any failures could also be shared among all without acrimony.

The Election Crisis

Of course, the constitutional and political crisis in the wake of the dissolution of parliament and the inability to hold the parliamentary election within the stipulated time as mandated by the Constitution is also no less significant. The worsening of the condition of this crisis is heightened by the following:

* The Election Commission itself has been expressing doubts as to whether the election could be held on June 20, which is the new date set by the Commission. 

* The possibility that the current period of uncertainty may persist until the end of May, according to the new trends in infection.

* As is known by now, the serious constitutional uncertainty that will ensue if a new parliament is not elected by June 02. One of the main arguments emerging in the light of this is that if a new parliament is not elected by June 02, the President’s dissolution of parliament on March 02 would automatically become invalid. This would mean that the old, dissolved parliament will be back in force. 

* Similarly, there is a continuing dispute over the question whether it is the President or the Election Commission that have the legally valid authority to determine a new date for the parliamentary election.

Against this backdrop, a few unusual constitutional questions are likely to arise. For example, will the dissolved parliament be reactivating itself by default after June 02, when the dissolution period of three months comes to an end without a new parliament being elected? On the other hand, is it a part of the scheme of things as envisaged by the some that the Parliament, having been unable to replace its old self by a new one as required by the Constitution, will exhaust its life as an institution of the state? Will that open up space for unconventional solutions, outside the framework of the present constitution, to the emerging crisis? These are very difficult questions to answer. Nevertheless, they are hovering in the horizon.    

A win-win solution?

What is in store for the citizens of Sri Lanka is likely to be a major politico-constitutional crisis the consequences of which may prove themselves to be unimaginably severe. At stake would be the very existence of constitutional governance in our country. This impending constitutional calamity needs to be avoided. It requires imaginative, out- of -the box and courageous thinking and action on the part of the political leadership.

Therefore, this is the moment for the President, the Prime Minister and his party, opposition parties as well as groups and individuals who influence the public opinion of the country to start a new conversation about at least a tentative, crisis-prevention alternative course of action. 

Looking at the available options from the point of view of the President, who received a popular mandate as recently as five months ago, re-summoning of parliament is a measure that falls well within the Constitution and law. Rescinding the dissolution order of parliament by a new order is perhaps the least complicated in terms of implications of the action. Although it is an action that has no precedence, it can be justified by the continuing uncertainty about the holding of elections as well as constitutional complexities that arise because of the non-holding of election due to the continuing pandemic. It also keeps the option open for the President to dissolve parliament again at a time of his choice, and perhaps in consultation with the Election Commission. 

It is true that there is no explicit provision in the constitution for recalling a dissolution order However, the President has the power to re-call, amend or revoke a previous order he may have made. The Interpretation Ordinance provides for it. Thus, revoking the dissolution of parliament is not unconstitutional, as the President seems to think, or is probably advised to think. 

The second option is creating conditions for re-summoning the dissolved parliament by making a proclamation, under Article 70 (7) of the Constitution, that a public health emergency has arisen. Such a proclamation will enable the President to issue another proclamation summoning the parliament which has been dissolved after three days of such proclamation. 

In fact, the Constitution, by the Article 70 (7), expressly recognizes that a dissolved Parliament could be recalled by the President. Similarly, the Constitution, by Article 155 (4) (i), recognizes that a dissolved Parliament would be automatically summoned once a Proclamation of a state of emergency is made by the President. These provisions clearly demonstrate that a dissolved Parliament could be reconvened to function by President’s direct and indirect action. Therefore, the Constitution envisages the necessity to summon a dissolved Parliament. 

Although no proclamation of emergency has been made as yet, what we are facing is indeed a situation of emergency. It is a public health emergency that has forced the government to respond in an emergency-footing. President has deployed the armed forces to assist the health authorities, appointed the Army Commander to head the Presidential Task Force, while the police, obviously on President’s orders, has declared curfew, and begin to enforce lock downs. The government is also employing military intelligence agencies to enforce ‘contact tracing’, which has serious implications for individual rights. By deploying the armed forces, the government has also been compelled to take measures to protect the populations and maintain at least semblance of normality in public life. 

This is indeed an undeclared state of emergency in two fundamental meanings of the concept: (a) the executive branch of the state is forced to acquire and exercise exceptional powers, without explicit parliamentary sanction, and (b) certain key freedoms and liberties of citizens have been curtailed and suspended by executive actions. If this is not an emergency, what else can be?

If the President makes a proclamation under Article 70 (7) or under Article 155 (3), such proclamation makes it necessary for the dissolved parliament to be reactivated. A reactivated parliament shall remain in force until the end of the emergency, or until the parliamentary election is held, whichever occurs earlier.

The challenge we face in this context is how to persuade the President to choose either of those two constitutional alternatives, which are also rational and reasonable options, to deal with the political aspects of present public health emergency. One thing is clear:  President’s choice for re-summoning the dissolved parliament cannot, should not, be a unilateral process. It has to be part of a political deal, a mutually beneficial political bargain between the President and the opposition.

It seems that the President’s camp is of the opinion that the choice of either of the above options leading to summoning of the dissolved parliament will be advantageous to the opposition parties in an unfair and partisan manner. They do not want opposition parties to gain even an inch of advantage in what they see as a positional warfare. Additionally, they have the apprehension that if Parliament is re-summoned, the opposition will use this to defeat, or disrupt or embarrass the President and the government. The trust deficit between the two camps is a part of the on-going political reality. Relying on the assumption that early parliamentary elections will enable the ruling party to gain parliamentary seats close to the magic number of two-thirds, the President’s camp must also be counting on the early normalization of the public health crisis, so that an early new date for the election can be within the realm of possibilities.

Thus, amidst the sharpening crisis, the President, the government and the opposition will have to think rationally — or prudently, if we use a normatively inclined term — about transcending partisan calculations, and taking action that will serve everyone’s enlightened self-interest.  The following might be considered as suggesting such a prudent course of action:

* Both the government and the opposition can be in, if we use the same cliché again, a win-win situation if Parliament is summoned. For the government, a re-summoned parliament will enable them to update the old public health and safety laws with new ones appropriate for a modern society and pass new legislation. Further, the curfew, the legality of which is still unclear, can be validated through parliamentary sanction as well as new legislation. Concurrently, the government can make yet another gain. That is, it will be able to obtain the funds necessary for public expenditure after April 30 with the approval of Parliament. As things stand as of now, funds for government expenditure are to be obtained on the basis of the Article 150 (4) of the Constitution. Whether or not this course of action is constitutional remains unclear. Matters that are in constitutional and legal grey zones can get cleared, without resorting to acrimonious litigation.

* The ‘victory’ the opposition parties can secure is the opportunity to participate as partners in the process of controlling and ending the spread of corona epidemic which has now become a national crisis. It can also contribute to an all-party effort to avoid a totally unnecessary constitutional crisis.

It is in this context that the President could perhaps respond positively to the joint opposition statement offering ‘responsible cooperation’ until the corona crisis is reasonably managed and the postponed parliamentary elections are rescheduled. At the core of that offer is re-summoning of Parliament by the President either by rescinding the dissolution order or by exercising his power under Article 70 (7) of the Constitution. The statement also seeks to alleviate the President’s camp’s apprehension that the opposition’s proposal is probably motivated by a hidden political agenda.

However, it is also important that we do not place too much hope on the outcome of an action by the President to re-summon the dissolved parliament. The least we should expect from such a move is the opening up of a new political space for the constitutional process to proceed in managing the constitutional and political crisis. It will also reduce the present level of political uncertainty caused by the evolving crisis. Hopefully, doors will also be open for the civilian political actors to claim greater participation in the shaping of new and inclusive strategies for managing the public health crisis as well as the simmering social crisis.  Then the parliamentary election can be re-scheduled through a process of consultation between the Election Commission and all the stakeholders in such a way that the lives of citizens are not exposed to danger either during the election campaign or on the day of voting.  After that it us up to the leaders of our political class to show that the corona crisis has made them a little more mature.

This is of course not a tall order of expectations, but a minimalist wish list.  

(I acknowledge with thanks the comments and suggestions made by Professor N. Selvakkumaran on an earlier draft of this essay).

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Latest comments

  • 3
    11

    These are the people who told us LTTE is undefeatable.
    /
    These are the people who told us that there is no military solution to Tamil separatism.
    /
    These are the people who told us MY3 is the most venerable statesman.
    /
    These are the people who told us RW is Mr. Clean.
    /
    These are the people who told us Ravi Karunanayaka is the best Finance Minister.
    /
    These are the people who told us “yahapalana” is the most democratic setup.
    /
    These are the people who told us Mr. Ruwan Wijewardene is the most capable defense minister.
    /
    These are the people who told us empowering Velupillai Prabhakaran will solve the ethnic issue of SL

    • 3
      11

      These are the people who told us GR is a US citizen.
      /
      These are the people who told us GR can’t contest presidential election of SL
      /
      These are the people who told us we can’t elect a president without minorities blackmailing us.

  • 7
    1

    Thank you Professor for a detailed analysis of the current situation.

    You are absolutely correct to say that GR’s policy of appointing the Tri-Forces to carry out Public Health duties and appointing them to lead the fight against Corona Virus is based on his “Strategy against the LTTE” is a narrow minded policy for this national crisis.

    Of course we need the support of the Tri-Forces for the infrastructure activities such as distribution of food & medicine, help in setting up new and old facilities to treat the patients, maintain the law & order in the country, etc. in this difficult time.

    Let the medical officials such as Doctors, Nurses, Public Health Officials, etc. to lead and carryout the required medical services.

    President should not allow the “Donkey to carryout the Dog’s work”.

    President’s problem is that he appoints either the current Tri-Forces officials or Retired Tri-Forces officials to lead and manage almost all the State Institutions and Public Administrative works.
    If you appoint a Carpenter to do the Bricklayer’s works we all know that we will end up in disaster!!!

    Mr. President, please interact with others and work on consensus politics rather than practising adversarial politics in a national crisis.

  • 1
    0

    Whether one likes or not, the President “Missed” his target fired at by the dissolution of the Parliament on 2nd March and setting up the election date on 26th April. Before anything could be worked on to get to the “Target”, this epidemic COVID 19 overtook his “Shootings” and he was pushed and compelled to handle the unexpected “Uprise”. In fairness and credit to him, it must be stated that he took some praiseworthy step to combat that too. But the “Mechanism” he set up lost its steam and criticism started pouring in. His elder brother who is also the PM “Sensed” what was going wrong and giving a patient hearing summoned the representatives of the political parties to work out a “Joint Plan” to face the pandemic situation. The agreed proposals were never put into practice, instead, the President summoned a “Cortier” of Buddhist Clergy to shelve what was then agreed by the PM. Next the President summoned the Cardinal along with one other Buddhist Clergy of another “Sect” with a view to “Defuse” the criticism leveled against his course of action. His action of commanding the Armed Forces must receive commendation to maintain law and order, especially considering the social and civic behavior patterns of the general public. At present the situation in the spread of the virus is spreading at an alarming rate. In addition the criticism is pouring in as regards the handling and the very mechanism set to handle the epidemic.

  • 1
    2

    I haven’t come across anyone who opposes utilising military resources for this uphill task against the virus.

    Soma

  • 0
    0

    “This is of course not a tall order of expectations, but a minimalist wish list. “
    This is one of Prof. Uyangoda’s rare fruitless essays. Suppose if he has aimed this at the university students for the purpose of educating them of the options available, this will gain again his usual Hall Mark. But he, though self-conscious, expecting the King and his royal gang to follow.
    I don’t have to go into this self-explanatory essay.
    But the current situation is not a constitutional crisis, because there is nothing constitutional complexity to be resolved but just to call back the parliament. Practically there should be no authority for the King to refuse for that. Supreme Court is not approached, so far by Parliament. So this artificially created political crisis. A same political crisis is existing at this movement in ruling team, the Slap Party-SLFP and the Ranil Vaalaiththodam Jr team. That is one gets translated as political crisis in the ruling president and opposition about who control the parliament.
    Running government under emergency is a favorite game for authoritarian style, Lankawe politicians. But this time King avoided it. The reasons are King wants the election as soon as possible and wants to avoid calling back the dissolved parliament, automatically. The problem of calling back the parliament is it is opposition party’s parliament, not King’s.

  • 0
    0

    A common sense approach

    Gotabaya Rajapakse had forcefully won the Presidential election in Nov 2019- So convincingly that any others could not even imagine stealing the victory in the near future.

    The President in the first place must believe in his victory and be confident, and then it is easy for him to be magnanimous towards the opposition.

    When the President makes the first move, the opposition automatically compelled to follow his lead.
    We have a historic precedent.

    In 2015 soon after the Presidential election that resulted in the unexpected defeat of Mahinda, the then new minority government of Ranil Wicramasinghe brought in the 19A and got the wholehearted support of the Mahinda Rajapakse group.

    It was only days before the dissolution of Parliament, that led to August 2015 General election
    The history will definitely repeat because the present opposition has no alternative, but to follow the lead.

    Why fear now, It is a win-win situation and the entire country benefit

  • 0
    0

    Another fine analytical essay by Prof: Uyangoda[ though after quite a while ].

    The military man that he is President GoRa would not be able to figure the need of the hour. The Rajapakses are thick skinned!
    Sooner or later, even those on whose backs he rode to Power, would realize that their MAN is leading the country to a point of no return.

  • 0
    0

    Plato,
    Constitution has been analyzed by many, on different angles, one here including by Mangala. In my opinion, even after Derana propaganda, now almost all Lankaweyans must be understanding that there is need to bring back the old parliament, whether Ranil willfully quit or not. Further there is need to answer the political frauds coming out of the Hitler-Mussolini team. CC was convened under speaker and there too they wanted the parliament. Now the Old Rowdy King is inviting MPs to his official residence, while parliament is cordoned by rapist Army, just like North. PM is only head of the ministers; it is Speaker is the head of the MPs. Why this is Old Rowdy King summons MPs to his residence? The Petrol shed attendance is saying as the election date is announced, so parliament meeting is illegal. All have explained that the election date EC announced is beyond June 2nd, so EP’s parliament dissolution declaration is void. In that case June 20 date does legally not exist. Because there should be a valid dissolution or end of parliament term has to come for EC to conduct an election. EC understand that their June 20th not a practical date as well as legally binding on nobody. What they are saying is that they could not conduct the election on April 25th so they need to announce another date.
    Here the problem is neither opposition nor learned like Prof. Uyangoda taking EP and PM to SC. EC cannot do that

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