Colombo Telegraph

The Responsibility To Decide (R2D) & The Courts 

By Dayan Jayatilleka 

Dr. Dayan Jayatilleka

One often sees the opinion expressed in print that all hopes are now reposed in the Supreme Court and that the very survival of liberal democracy or even democracy in general, rests upon its verdict. Almost all those who express this view mean that the SC should rule against the decision of the Head of State to dissolve Parliament, in effect paving the way for fresh elections. Put differently, these opinion-makers hope and pray that the courts rule against the newly appointed government and in favor of a restoration of the status quo ante.

I am no lawyer, and strive, mostly successfully, not to speak of subjects I have no formal learning or experience in. Furthermore, I do not wish to debate the legality or constitutionality of a matter that is before the courts. 

However, I am a political scientist and a man of some international experience, in addition to having some experience in and around the domain of high intensity conflict and politics as such. During the Premadasa Presidency, at a time of civil wars and intervention, South and North, I was appointed by him as the Director Conflict Studies at the Institute of Policy Studies, though I was only in my early thirties. In other words, political conflict is a subject I do know about. This encompasses what leads to violent conflict and how conflict may be prevented. 

What is at stake politically, not legally, in the Supreme Court’s decision? It is the question of whether a snap election can be held or not. It is whether the path is cleared for a snap election or it remains barred until later in 2020. It also and more fundamentally, the question of whether or not the President can make that judgment call. Given that he is directly elected by a majority of the people regarded as a whole, i.e. the country taken as a totality, it seems eminently rational to me that the responsibility to decide whether a national political situation is so intractable as to require the surgical intervention of a snap election, should be in his hands and no other.  

If the election concerned is a mere whim of the President, then we may incline to one preference, but if not, we should incline to another. I am disinclined to regard the decision to dissolve as a mere Presidential whim if only because it has an important precedent. President Kumaratunga dismissed the same Prime Minister, dissolved Parliament and went for elections. How can one explain that two Presidents, who could hardly be more dissimilar, did the same thing to the same Prime Minister and in much the same manner? It is because, in both instances, tremendous social pressure had built up, resulting in intolerable political contradictions. 

This present political crisis involving the Parliament is merely the tip of the ice-berg of a larger and deeper social crisis that has been building for three years and manifested itself earlier in the results of the Feb 2018 local government election. 

One must never forget the blood-soaked 1980s. As a direct result of the blocking of the holding of Parliamentary elections scheduled for 1983, the accumulating social tensions generated by the Open Economy exploded in the form of racial violence – actually, racist attacks–in the South, which in turn provided an accelerant for the terrorist campaign in the North, turning the latter into full-scale war, which generated a counteroffensive by the State’s armed forces, triggering an external intervention, which itself fuelled the ongoing xenophobic insurrection in the South. 

The only way in which stability was even partially restored was by the opening up of the closed electoral safety valves, first with the Provincial Council elections of 1988, then the Presidential elections of the same year and the Parliamentary election of early 1989. Even so, peace and stability were fully restored only by Mahinda Rajapaksa almost two decades later. 

That’s how long it took to exit the horror caused by the shutting down of the System’s electoral safety valves. Then, the shut-down was by means of a Referendum. The referendum was not the cause of the violence, though the violence came mere months after it, in July 1983. It was the aim, the goal, the objective of that referendum—the non-holding of Parliamentary elections—that led to the carnage, because the pent up social and political steam had no way of releasing itself.

In the 1980s, large sections of the Sinhala majority felt unrepresented because the electoral system yielded a result in which Mr. Amirthalingam was the Leader of the Opposition who veered between moderation and rhetorical separatism. This was topped with the disenfranchisement of Madam Sirimavo Bandaranaike and the jailing of vigorous elements of the Southern opposition such as Vijaya Kumaratunga. The Open Economic policy caused an erosion of the relative status of the native entrepreneurs, while generating socioeconomic inequities and cultural dissonances which were unprecedented. Sinhala nationalist sentiment was affronted by the rise of terrorism and the formal support of the secessionist slogan by the mainstream Tamil nationalists. 

The witches’ cauldron boiled over and hundreds of thousands of lives were lost. Very little of it would have happened had a General Election been permitted in early 1983 instead of being blocked in December 1982. The Presidential election was no substitute. It had been held in October 1982 and won by the incumbent, but sub-national level grievances are ventilated in the arena of the parliamentary electoral process, which if blocked, leads to an explosion.

The cycle of history repeats itself. The profile of the UNP in the 1950s led firstly to the Hartal of August 1953 and only later to the electoral outcome of 1956. Imagine what would have befallen Ceylon if not for that election in 1956 which some see as the beginning of the Great Fall? The Hartal would have repeated itself on a vaster scale, commingled this time, with the linguistic and cultural passions that fed into 1956—and it would have taken a non-electoral, non-peaceful form. Remember that 1956, just as 1970 after it, were referred to as Silent Revolutions. Those Revolutions stayed silent only because of timely General elections. 

The same thing almost happened in 1965-1970. The policies and profile of the seven–party UNP-led coalition which included the Tamil parties (the so-called Hath Havula), especially those policies of the “JR-Esmond faction” (the latter was Mr. Ranil Wickremesinghe’s father) resulted in a chauvinist tinge entering the discourse of the democratic Opposition (SLFP-LSSP-CPSL), Bhikkhu-led protests, and the rise of a serious revolutionary left, preceded and accompanied by a radical university student movement. Violent rebellion erupted in 1971 but it was quelled so swiftly only because it was facing a freshly elected government, with General elections having been held just the previous year, 1970. If not, and if the insurrection was not facing a moderate nationalist Government, the first insurrection would have been as serious a business as it was later in the latter half of the 1980s when the UNP was in office.

Today we are at the same crossroads under which the same explosive mix is buried: a pro-Western minoritarian elite, low economic growth, socioeconomic inequity and hurt majoritarian nationalism. The masses see unrepresentative urban elite attempting to manipulate the System, using institutional means and technicalities, to block a more socially representative dispensation that the people feel less alienated from and are more able to relate to. 

In Sri Lanka today, the Children of ’56 face the Children of ’62 (the abortive minoritarian coup attempt of 1962 which led to a majoritarian policy backlash). If the UNF petitioners succeed, then the present and ancient leadership of the UNP will remain entrenched, with the consequence that political as well as socioeconomic polarization will continue for years to come. 

If on the other hand, the SC permits dissolution and an election, the present and ancient UNP leadership will be undermined and possibly overturned, opening the road for a new leadership which is not so alienated from the majority of our citizens and therefore will not provoke a populist cultural backlash. The UNP may become electable again and not dependent upon impossible coalitions and proxy Presidential candidates. The cycle of polarization of Sri Lankan politics will cease and politics will flow back into the usual channels of center-right and center-left, neither of which will be too far from the center. 

The global context is one of populist and nationalist backlashes against the neoliberal economic model and Western liberal democracy. The combination of Sri Lanka’s local contradictions and the global trends could result in majoritarian alienation and outrage taking violent forms of expression. Far too much steam has built up in the system. It is not a moment too soon to divert this into peaceful channels by promptly unblocking the electoral safety valves. 

My wish as a political scientist, who has been all the way through thirty years of conflict as a participant observer and analyst, is that there is a soft landing with a safety net. I hope the Supreme Court cuts the Gordian knot and ends this political intractability, liberating the citizenry as peaceful electors and collective sovereign; master, mistress and maker of its own democratic national destiny.   

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