7 August, 2020

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The President’s Call: Politics Or Constitution? 

By Jehan Perera

Jehan Perera

The government is continuing to take actions to keep the country in lockdown mode with which the general population has been cooperating with even though it is creating economic hardships to wide swathes among them. These include the imposition of a 24 hour curfew that is now into its fourth week in some areas. Despite the hardships there is widespread support for what the government is doing as the fear of COVID infection is also widespread. In the more rural areas most of the houses have kohomba leaves hanging in their doorframes as they are believed to have medicinal properties that will ward off diseases. The security guard across the road recounted that when he goes home he is compelled to first have a bath and put his clothes to be washed before entering it.

However, the prolonged 24 hour non-stop curfew and accompanying lockdown are also becoming more difficult for daily income earning sections of the population to cope with. The pressure will be mounting on the government to bring an end to the curfew which has been at the heart of its COVID mitigation strategy. There is economic pressure coming from both affected individuals and corporates. The government has been able to provide recipients of poor relief via the Samurdhi programme with a financial grant of Rs 10,000. But there are many others who have become equally poor if not poorer on account of their inability to go out and earn their daily incomes. They are not recipients of government aid in any systematic manner.

The pressure on the government is also coming from the corporate sector. Big business companies have slashed the incomes of their employees by significant amounts that vary from 25 to up to 60 percent in some cases. Smaller business companies without reserves and without cash flows have found themselves unable to pay their employees at all, with the employees helpless to raise objection as they are housebound due to the 24 hour curfew. They would want the government to end the lockdown which would enable them to get back to their regular commercial activities. However, economic pressure is not the only reason why the government will wish to bring the regime of 24 hour curfew and lockdown to an end.

Elections Soon 

The government has a political motivation to declare a quick victory over the COVID virus. This is on account of its interest in holding general elections without further delay. With each passing week, as the economy weakens, and prices rise, public opinion can shift against the government. Prices are bound to rise steeply in the months ahead as the rupee weakens against the dollar, as it already has, and imports become more costly. The growth rate of the economy is anticipated to be negative with the World Bank predicting a recession for the country of up to 3 percent of GDP in common with other South Asian countries. The downturn in the economy will be largely for reasons outside the control of the government, such as the large scale cancellation of orders from foreign buyers that is severely impacting on Sri Lankan export companies.

The government’s desire to declare early victory over the COVID virus is being contested by those in the medical profession who have been among its supporters in recent times. One of the unexpected conflicts of the present time is the one between the state sector doctors represented in the GMOA who are in the front line of the battle against the COVID virus and the Ministry of Health. The latter, led by the Minister of Health are claiming that the COVID crisis is under control. The minister was reported in the state media to have said that “by April 19 all possible COVID patients in Sri Lanka will appear and the people who had it without any symptoms or with mild symptoms will be completely recovered. All we, Sri Lankans need to do is stay at home without going out until April 19. The country can then be saved from COVID-19…”

The GMOA can hardly be said to be an anti-government group, as its leadership campaigned vigorously on behalf of the president during last year’s presidential election. However, the stance they are now taking in the public interest is contradictory to the political strategy of the government, which appears to be to conduct the general elections as early as possible. Instead of prematurely declaring victory over the COVID virus, the GMOA has been asking for intensified approach to be taken to contain the virus, including more testing and preventing free movement of people across districts. But the dilemma for the government is that the longer delays holding the elections, the worse the economic crisis is likely to get. It will require the global economic situation to improve before the economic situation within the country can improve.

Regularising Actions 

There is a further crisis that the government will be heading towards. This is a constitutional crisis due to governing the country without a functioning parliament. The problem here is that the government’s current budget period ends on April 30. If the government is to obtain more funds from the Treasury it needs to obtain parliamentary approval. This is a legal requirement and is part and parcel of the democratic system. Those who spend the money need to be held accountable. This requires transparency on the part of the executive, and that parliament should be a check and balance to ensure that those public funds are used in the public interest.

There are three methods by which parliament may be brought into the picture to give the government the legal sanction for the actions that need to be taken. These have been summarized by Ameer Faaiz, LL.M, Attorney-at-law, & Nizam Kariapper, LL.M, President’s Counsel, in an article titled “A looming constitutional crisis, courtesy Covid-19” and published in the Groundviews website. The first option would be to set the date for fresh general elections that would enable the convening of a new parliament on or before 2nd June 2020, which is the constitutional deadline for the new parliament to meet. This permits the Election Commission to publish a new date for the poll. However, with COVID still raging, this is a dangerous option for the health of the country, for which the government, medical personnel and people have made great sacrifices to protect. It will also not help the government to address the issue of obtaining public funds after April 30.

The second option would be for the president to use the power vested in him of by Article 70(7) of the constitution. Under Article 70(7) of the constitution, 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.” The third option would be for the president to rescind the proclamation he issued on March 2 to dissolve parliament. If this is done it would restore the parliament which was originally elected on 17 August 2015 to continue until 1 September 2020.

From the perspective of public safety, and to preserve the gains that the long curfew and lockdown have brought with it, while remaining within the frame of the constitution, the government will need to choose between two latter options, both of which involve reviving the dissolved parliament. The option to utilize Article 70(7) of the constitution that permits parliament to be revived for emergency measures would be politically least costly to the government. It will enable the regularization of the curfew, passage of a short term budget, amending laws and, hopefully, to evolving an all-party mechanism to decide on a legal amendment that would take into account the inability for a newly constituted parliament to be convened before June 2. The other option would be for parliament to be recalled by the president to serve the balance five months of its term until September 1, 2020.

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Latest comments

  • 9
    1

    Why should Mahinda family worry about the country and people as long as they are well off in financial, economic and Corona? Their focus only power and eliminating their political enemies using the Corona.

  • 9
    2

    Johan,
    You think a war criminal has any respect.for any law or constitution.
    He is the law

    • 1
      0

      Dilshan – What matters is his own future well-being. If the Gen. Elections are held in the
      COVID19 mess-up, that 2/3rd can be got, with Basil & EC doing the needed with ease. This
      is required only to tackle the 19th Amend. in which provision will be made for life-long
      immunity to present and future SL Presidents. This will provide for Gota`s retirement in
      California with no legal trap. The Forces will support this angle as they will be guaranteed
      of no action in the future IC plans. Make hay while the sun shines.

  • 3
    9

    Jehan, fear of COVID weighs far greater than hardships or political situation.
    For one thing, there should be no reconvening of parliament as they were of no use during the 41/2 years as what was expected of them never materialised and the the reconvening will not make any difference.

    As for politics and elections, let it be pushed into the back burner as the Pandemic at hand takes precedence.
    there can be democracy only if the pandemic is successfully overcome.
    There should be exception to the rule in terms of a crisis of this proportions.
    Need of the time to keep a distance from Tongue in Cheek articles & focus on the pandemic.

    • 7
      2

      Thondamany: You are trying to justify a dictatorship by citing the Covid pandemic as an excuse. Covid pandemic is by far preferable to Gotabaya the Dictator. The latter is a bigger scourge on the country and populace than the evil and cunning virus!

    • 3
      0

      Jehan, fear of COVID weighs far greater than hardships or political situation.
      For one thing, there should be no reconvening of parliament as they were of no use during the 41/2 years as what was expected of them never materialised and the the reconvening will not make any difference.
      Sinkala THONDA

      *** What rubbish are you talking about.

      1) As for politics and elections, let it be pushed into the back burner as the Pandemic at hand takes precedence.
      *** Have you consulted Gotha the Criminal as his and his familys interest takes precedence.

      2) there can be democracy only if the pandemic is successfully overcome.
      *** Are you serious. Even before the Pandemic democracy was dead and buried. The was no RULE OF LAW or LAW & ORDER

      3) There should be exception to the rule in terms of a crisis of this proportions.
      Need of the time to keep a distance from Tongue in Cheek articles & focus on the pandemic.

      *** If Gotha says Pandemic is under control only an Idiot like you will over rule Gotha.

  • 2
    2

    JEHAN PERERA:

    A similar thing happened to an African country which tried to show smart. Some one, just before the elections, set fire to the storage buildings that had all the election paper stuff had been stored.
    Some one when in these days importing is very difficult, no one wants to do business with other countries these days, (not because of the six deaths that our rupee was busted again, for doing nothing)…
    Anyway, if there is constitutional problem many lawyers will make a very long line up to complain about it which will become disaster. It will be another October revolution.

  • 5
    1

    The President’s double standards cannot be condoned.

    He gave the excuse to exclude Champika Ranawake and Rishard Badiuddeen from the recent meeting he had with Samagi Jana Balawegayaya was that those two named politicians are currently under investigations for criminal activities.

    OK we all agree with the statement.

    If so, can the President explain to the country how he has appointed Mr. Lalith Weeratunge as his Chief Adviser who has been convicted for mis-use of public funds by a High Court judge. He has been given a prison sentence by a Court of Law in Sri Lanka and he is currently out on bail waiting for the appeal.
    Mr. Weeratunge has attended the same meeting as per President’s invitation.

    This incident illustrates the President’s double standards although he is trying to show the public that he is a law abiding honest President.

    • 2
      0

      These Politicians have forked tongues

  • 1
    4

    It Looks NGOs desperately need some political crisis at the expenses of the COVID-19. USA had it’s primary elections. South Korea had it’s elections and the governing party won a land slide.
    Sri Lanka does not have difficult situation with CORONA. Yet, if the govt carelessly handles it NGOs can make it a worsened situation. Who knows what will NGOs say at that time. They might say. CORONA is worse and NGOs may bring a constitutional by lining in front of the SUPREME courts. I do not know why NGOs say use CORONa and make big fuss about election. Even though HOOLE, EC member is supposed to be impartial, he is one who made a big fuss during the 2018 October. Who knows what you all have in storage. I think it is NGOs or their friends who set fire to the Kuruneqala hospital and to the govt PRESS paper storage facility.
    I say never trust NGOs.

  • 0
    0

    Most of people who advocate Elections in the midst of the Corona virus are ones who live in cordron
    3 in the matrix of “Focus” well explaind in the Book “The 7 Habits of Highly effective people” I think 90% of the politicians would have not even read the book, including the Leaders. At least now since you are confined to the Houses try to read and understand what is IMPORTAT & URGENT Square 1 , IMPORTANT BUT NOT URGENT Square 2, URGENT BUT NOT IMPORTANT SQUARE 3, and NOT URGENT & NOT IMPORTANT Square 4. The first two are above the line things one should do, the other two are below the line where most of our politicians live in . In this situation you need to do things which are IMPORTANT & URGENT & IMPORTANT BUT NOT URGENT. At least the ones who take decisions should live above the line and do things accordingly to get through difficult situations. Top Mercantile firms will follow this and Focus on What is Important & Urgent

  • 1
    0

    Very often you can see comments by lunatics for these worthwhile articles. It is a pity to note these lunatics are accorded valuable space in the paper. When will this lunacy end?

  • 1
    1

    Dear Jehan,
    It is surprising to see many “champions of democracy” suddenly pleading not to hold the next general election any time before the 2nd June. It is obvious why these champions are pleading with the government with many a constitutional experts etc airing their expert views. Even the political commentators have now become public health experts telling the government when to declare it safe to hold the next election. It is obvious there is a concerted effort by some to get the old parliament reconvened.

    The old parliament will in no way assist the government to solve the critical problems facing the country economically and financially. They will try their best to put the spanned in the works. As a minority government it will be a dangerous prospect for the country knowing the politics of the land. Never have the politician in the history of the country put the country before themselves. So we can’t expect it to change now.
    So what is the alternative for the government. Everybody agrees that the covid crisis is prettty much under control. So it is up to the EC to hold the GE in a district wise or staggered over 2 days basis or other alternative suitable method of holding the election. The ball is in the EC’s court.
    We have had election under much worse situations such as the JVP insurrection and the LTTE terrrorism simultaneously. So holding an election with a virus is nothing worse. It is in the best interest of the country the give the government a clear mandate to mange the country out of this mess. Let’s not fiddle with this issue. The intelligencia should support the government if they are for elections. Be consistent. Don’t play politics.

  • 0
    0

    Jehan is off his bonkers to think GR has lost an iota of popularity due to covid or the post-covid economic fallout. elections are about choosing between two or more parties. no matter what hardships people face going forward, the people know GRs opponents would have turned this country into a graveyard had they been in charge during covid. For that reason alone SLPP is going to obliterate the UNP, the telephone and all other parties.

    Also, no matter what happens the constitution clearly states that the next parliament has to sit before 2 june 2020. And, there are no provisions in the constitution for the dissolution of parliament to be rescinded. Neither can the supreme court intervene as GR has not contradicted the constitution.

    But none of this is relevant. Korea had an election two days ago with record turnout. We can easily have an election in late May. Just need to ban election rallies

    • 0
      0

      bada——
      “Just need to ban election rallies.” There will be no foreign personnel for election monitoring
      too. We know what happened to the previous EC – not a single SB friend has queried his
      whereabouts and this alone sends shivers in EC Mahinda D. So no election will come up
      before June 2nd.

  • 3
    0

    The President’s Call: Politics Or Constitution

    *** It is all about Politics. Sri Lanka doesnt have a Constitution because if it did neither the Judiciary nor Gotha would have flouted the Constitution. First Gotha being elected to stand for Presidency even though he was barred by the Constitution as a Foreign Citizen standing for President and then the Judges some loyal and some out of fear giving the seal of approval for him to stand maling a mockery of Rule Of Law. In my view it is better for Gotha to have the election now before the truth comes out. so that MR will be elected and Sri Lankas future will be sealed. Gotha lovers are oblivious to the fact that Gotha doesnt have any friends in the World.

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