15 August, 2020

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If President Acts, Resort To Courts May Not Be Necessary 

By Jehan Perera

Jehan Perera

A study by the Economist magazine has shown that Sri Lanka is one of the countries least able to deal with the economic fallout of the coronavirus induced world economic crisis. Out of 66 countries assessed, Sri Lanka came 61st in terms of its ability to handle the crisis without being economically debilitated and fared much worse than its South Asian neighbours. Bangladesh at 9th place, India at 18th and Pakistan at 43rd place all fared better than Sri Lanka. The human cost of the crisis is visible in media images of thousands of angry young workers from around the country stranded in the vicinity of the Katunayake free trade zone, many of them abandoned by their factory employers, unable to get back to their home villages due to the coronavirus travel restrictions.

The pathetic situation of the free trade zone workers is only one aspect of the crisis that has had an unimaginable impact on large numbers of other Sri Lankan whose livelihoods have become insecure just as in many other parts of the world. However, the governments of the more economically advanced countries have been able to provide substantial cash grants and other unemployment benefits to those whose livelihoods have been negatively impacted. Lockdowns to halt the spread of the coronavirus are prevalent in almost all countries of the world and in many of them have governments been able to find the resources to sustain the living standards of their citizens. With its access to foreign assistance from the Asian Development Bank and China, Sri Lanka could give more to sustain the affected population.

Unfortunately, Sri Lanka is not among those countries whose governments have been prepared to adequately buffer their citizens against the economic devastation that the coronavirus has brought in its wake. The country seemed to be having success in containing the spread of the coronavirus, but this too has been thrown into doubt by the sudden spiking of coronavirus infections despite the long term lockdown and curfew. The low rates of infection reported in mid-March at the time parliament was prematurely dissolved gave rise to the possibility of general elections taking place as scheduled. The initial low infection rates that were reported may have been due to the low rate of testing taking place in the country, which led to underestimates of the numbers actually infected.

Political Crisis 

Trapped in an economic and health crisis of life threatening proportions, Sri Lanka is now careening towards a political crisis, not unlike the political crisis that erupted in October 2018 when the then president sacked the sitting prime minister outside of the constitution. Similarly the main question today is whether there will be adherence to the rule of law and to the constitution. The government leadership at present is taking the populist approach arguing in terms of the mandate they received in succession, first at the local government elections of February 2018 and second at the presidential elections of November 2019. They argue that these two victories coupled with the dissolution of parliament by President Rajapaksa in Mach 2020 have made the former parliament akin to a dead body.

However, even a cursory reading of the constitution would show that a dissolved parliament is not quite dead in the manner of the proverbial dodo, but can be revived if the occasion demands it. Article 70(7) of the constitution states that the president is empowered to summon parliament any time after its dissolution to deal with an emergency. The provision reads as follows: “If at any time after the dissolution of Parliament, the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier.”

Article 70(7) is discretionary and the president may or may not decide that the situation is an emergency that necessitates the summoning of the dissolved parliament. However, there are other sections of that same article of the constitution that are not discretionary and which need to be followed. Article 70(5) (a) states that “A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.” There is no discretion given here to the fact that the country shall not be without a parliament for more than three months. This is because the Sri Lankan constitution, like democratic constitutions worldwide, is based on the fundamental principle that the power of the executive president must be checked and balanced by the power of parliament.

Reasonable Alternatives 

On June 2, Sri Lanka will be without a parliament for three months and the constitutional provision of Article 70(5) (A) will stand breached. Apologists for the government who once argued that the constitutional coup of October 2018 was legal now argue that the “doctrine of necessity” can operate, and that the constitutional limit of three months for the summoning of parliament may be overlooked in this situation of coronavirus crisis. However, there is no need to go to the doctrine of necessity, as the constitution itself supplies two solutions to the present problem. The first, as already mentioned, is for the president to utilize Article 70(7) and re-summon parliament to deal with an emergency situation, which the coronavirus pandemic clearly is.

The president also has a second option. Article 70(5)(A) of the constitution, which permits the president to dissolve parliament comes as part of a three-part package. The first part of the package is that the president is given the power to dissolve parliament. The second part of the package is that the president must fix a date for the new parliament to be elected. The third part of the package is that the new parliament shall be summoned to meet before the three months limit is up. If any one of these three conditions are not met, the constitution is violated, and therefore, the proclamation itself becomes extralegal and invalid.

The issue at stake is for how long a democratic polity may be governed by an elected president in the absence of an elected parliament. Sri Lanka has an unbroken tradition of democratic transition from one government to another according to the rules set out in the constitution and in the other laws of the country. Populists may argue in terms of popular mandates obtained by victories at elections which they believe entitle them to break or negate the laws for the greater good of the nation. However, the hallmark of long term and sustainable democracy is adherence to the rule of law and to the constitution.

The practice of democracy in Sri Lanka needs to become one in which the “winner-take-all” thinking gives way to a more consensual type of governance in which constructive opposition is taken seriously by the government. The President and the present caretaker government need to take into consideration of the fact that 5.5 million voters at the presidential election cast their ballots in favor of the main opposition candidate. Also that the parliament that was prematurely dissolved on March 2 was one in which the parliamentary majority voluntarily ceded power to the parliamentary minority to form the government. The tragedy of the coronavirus may be a blessing in disguise if it leads the country to a new political ethos in which statesmanlike governance merges with constructive opposition. It is better that the president takes the decision to uphold the constitution than the burden of finding the answer is put upon the courts of law.

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Latest comments

  • 16
    2

    Yes, it is true that people were unhappy with the previous government lead by SLFP President and UNP lead government. However in the presidential election President Gotabaya was elected SLPP candidate received 52% votes and UNP candidate got 42%, JVP candidate receive 3% and others 3%. So, 48% of the population did not voted SLPP candidate. This election divided the nation in terms of ethnicity and their religion. In any democracy, a strong opposition is essential to secure the country falling into dictatorship The country faced severe suffering under dictatorship in other words, two third majority to any government lead to misuse of power, corruption, loss of freedom to judiciary, rule of law, freedom of movement etc. It is the same under JRJ, Premadasa, Chandrika, Mahinda and Sirisena. All of them promised to get rid of this one man power with two third power.
    Srilanka politicians always behaved selfishly about them, family and their own wealth. Gotabaya Rajapakse is no different to previous dictators. Militarisation, Racism is dominant feature of this SLPP lead government. Only protection to democracy is the 19th amendment. People have a responsibility to protect the 19th amendment. It is the duty of all political parties should unite to protect that right at any cost.

  • 18
    3

    Till that fateful day in 2005 when the bullshit cow dung eating with relish Mahindan Rajapuka strode into power with a wafer-thin majority of only 148,000 votes.
    =
    All this was possible due to a few parasites successfully bribing Velu Annai into ordering the hapless Tamil folk who were under his control not to cast their ballots to the rightful clean dignified in all aspects Ranil.W who should have been a great office holder of this much-esteemed post.
    =
    Now in 2020, the foolish kawun eating Sinhala modayas 6.9 million of them have been misled by cunning forces to vote for the worlds most sought after war crime murderous mudalali.
    =
    This presidential poll was a gift to him due to the infighting between the no 1 and the no 2 leaders of the UNP alliance.
    =
    After securing the right to sit in the royal Commode he felt like a fish out of water and being highly clueless he started recruiting his military crime stained mates to run the sad sorry shitty bankrupt nation which will shortly become the worlds pariah begging bowl carrying nation loathed by most of the countries on this planet.
    =
    Since the end of April the government it is said has run out of monies for its daily needs.

  • 8
    1

    As the author very well knows, this is a failed state where mistrust and opportunities reigns over the National Interest. It is clear that all our representatives are a set of Kleptocrats not worth talking about. So Why expect ONE MAN to do the needful perhaps leading to political suicide? Does the Author mean to say that all those in the then opposition clamour for this much talked of 70(7) for the love f the country? On the other hand the request is ignored by those who can is yet for the love of the country? The answer to both the questions is NO.

    • 3
      6

      Tell a man on the street there is a ” Constitutional Crisis.” You will have to run for your life.

      Soma

  • 4
    0

    Jehan Perera ,

    Jehan , did you say resort to courts may not be necessary if the President
    Acts ? Is it that easy to forget the dismissal of Yahapalanaya by Sirisena ?
    Where was the courage coming from ? Is it hard to grasp the fact that quite
    a large part of the majority has been taught to listen to the lectures of
    hatred created by selfish racism ? And this lot is free , roaming the streets
    ready to show their muscle to the weakest ! Which court can stop them
    before action ? The new language is clear ! Perpetrators are free to act and
    the victims can go to courts ! But the perpetrators will keep on acting at the
    same time allowing the victims to RUN AFTER COURTS ! You think this
    culture will change ? Tell us what makes you think that Jehan !

  • 8
    3

    I don’t think it is of much importance to argue on the election of the present President. A President has been elected and it is of importance to assess how he functions. A situation has now arisen to assess him on his appropriate functioning in a crisis situation. No doubt a “Constitutional Crisis” has arisen. How does handles it is the question? Will he act as per the Constitution or fail to act accordingly? At the moment he has “Created” a crisis for not being able to establish a Legislature as laid down in the Constitution after the “Dissolution” of the then existing one prior to the March 2nd. The Election Commission tried to avoid the “crisis” somewhat by referring to make a decision by the President to consult the Supreme Courts, the main “Authority” to interpret and give a ruling. The President flatly refused to take that chance and avoid the crisis. In that refusal, he put the EC into real trouble. Now both the President and the EC are in trouble. Now a “Citizen” is asking the SC to declare the “June 20” the day of the election to be declared illegal. That decision would be the turning point in the history-making of S/L politic and Legal System. If “Affirmed” is the verdict, the President and together with the EC would be in real trouble. In this case, AG will be representing the state and let us see how he functions in defense. This the “SITUATION” and the “CISIS” that the general public will have to be made aware of and educated so that well “Informed” decisions are made, rather than sidetracking the minds on “Personalities” worship. Await to see what happens on May 11.

  • 0
    2

    HE may take his time to ponder and arrive at a decision. He is a very good listener and hopeful a very good outcome soon

  • 5
    1

    In Sri Lanka, there is now a very big emphasis on popularism in contrast to legality. Rulers often see themselves as above the law, if the people’s mandate is great. Even JR Jayawardene after his 4/5th majority in 1977 behaved like that although he too was a senior lawyer by profession. The law, apparently applies only to ordinary people, where they get punished when they break the law. It is also a means of controlling the people, that illusion of justice which is role-played by important-looking legal eagles. Beneath all that, lies a stark truth that is almost never publicly acknowledged: That the law is never just in Sri Lanka. So, people should really choose what they want, and be careful what they wish for..!

    • 3
      1

      ” So, people should really choose what they want, and be careful what they wish for..!

      Hire a British, Japanese, American, German manager to run the country.

  • 6
    1

    Out of 66 countries assessed, Sri Lanka came 61st in terms of its ability to handle the crisis without being economically debilitated and fared much worse than its South Asian neighbours.

    *** But the remarkable thing is the Majority of the Majority think that Gotha will fix the Rot eith his bare hands

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