Pandemic adds to Lanka’s constitutional woes

Maj Gen Ashok K Mehta (retd)

Military commentator

Sri Lanka may be heading for another constitutional crisis. It is the only country confronting the pandemic without a Parliament but with an unelected caretaker cabinet. President Gotabaya Rajapaksa, who is keen to hold early elections, dissolved Parliament on March 2 even as the National Election Commission (NEC) ordered elections for April 25 after the Health Minister had claimed that by April 19, the situation would be normal. With the Covid-19 situation deteriorating sharply, the NEC postponed the elections, first to May 28 and then to June 20. A new Parliament has to be installed by September 2 as the term of the eighth Parliament will end on September 1. The spread of Covid-19 has followed an upward trajectory — the first 100 cases in 57 days; the next 100 cases in 18 days, next 100 cases in eight days with the next 100 cases in four days and another 100 cases in just two days. Sri Lanka has reported over 860 cases of Covid-19 so far, including nine deaths.

A new Parliament should be in place within three months of the House abrogation. The election has been fixed for June 20 and it is likely that the date could be extended. In the interim the President will run the country without Parliament, and an unelected caretaker government. Further, the vote-on-account for the current budget ended on April 30. Former Foreign Minister Mangala Samaraweera said that spending from the Consolidated Fund of Sri Lanka will be unconstitutional, with Gota rejecting his stand.

Given this extraordinary situation, exacerbated by the growing pandemic, Gota has two options: first to rescind presidential proclamation of March 2 to restore Parliament elected on August 27, 2015, to serve its full term till September 1; second, under Article 70 (7) of the constitution, temporarily summon Parliament due to the emergency Covid-19 situation. If Parliament is kept alive till 1 September, elections can be held comfortably and likely in Covid-19 free environment on December 1. If Parliament does not convene by June 2, the old gazette notification and presidential order dissolving Parliament becomes null and void.

June 20 is Gota’s 71st birthday. The NEC has said it was not aware of it. The former Army Colonel in the President has floated more than one balloon in the air. In a recent TV interview given to the family confidant and presidential advisor Lalith Weeratunga, on question of reviving old Parliament, Gota said: “I will not restore Parliament… I will not summon old Parliament… I have no legal right.” On the question of yet another postponement of election beyond June 20 — he has previously affirmed that the NEC can fix any date it considers appropriate — Gota in typically military style said: “I will take solo action.” He elaborated: “It is clear who has the ultimate responsibility to uphold the constitution. I will fulfil promises made to the people.” Gota’s historic election victory of 6.9 million votes was the first ever with majority Sinhalese votes. For now he is keen to hold an election on June 20 and not reconvene dissolved Parliament notwithstanding the constitutional crisis that may confront the country.

No one has forgotten the 2018 constitutional crisis when former President Maithripala Sirisena dissolved Parliament and appointed Mahinda Rajapaksa Prime Minister. The Supreme Court finally restored Parliament which was revoked for a second time on March 2 according to Article 19 of the amended constitution. The Rajapaksa brothers do not wish the pandemic to rob them of the fruits of the stunning presidential election victory last November. The economy is likely to contract, facing a 3 per cent recession. Any inordinate delay in holding the election will worsen the economy. Going to the people for a general election during a pandemic is a risky proposition, especially when the NEC cannot guarantee a free and fair election, especially on the question of turnout.

Before fixing the date (June 20), the NEC consulted some of the Opposition parties. Even June 20 is subject to revision, it said. The Opposition complained that the government is ‘electioneering’ in the guise of a pandemic response. The Presidential Task Force on Essential Services is led by Gota’s younger brother and head of Sri Lanka People’s Party (SLPP) national organisation Basil Rajapaksa. The Army, security forces and national intelligence are key elements of the National Operational Centre for Prevention of the Covid-19 outbreak, led by CDS and Army Commander, Lt Gen Shavindra Silva. The national curfew/lockdown is army-promulgated but with military personnel especially 4,000 naval soldiers quarantined at Welisara Naval Base, the public may have lost confidence in the military. The Army has employed the Root and Bolt system which identifies a Covid-infected person and all possible contact-links of the infected using military intelligence. The country’s medical and health staff, along with the military, are portrayed as the new corona warriors. The apparent advantage by the SLPP has not been missed by the Opposition. Presidential loser Sajith Premadasa has told NEC that elections be held only after health officials certify that the conditions are safe for the purpose.

Surprisingly, Prime Minister Mahinda Rajapaksa recently summoned all 225 lawmakers of the old Parliament which many parties skipped, floating another balloon against the Colombo skyline soon after the President ruled out restoring Parliament. This time, Gota criticised Opposition parties for not wishing to hold elections at a crucial time when government is striving to safeguard public health, social security and welfare. He is confident he will ride over the alleged constitutional crisis and the pandemic and hold elections in June, bagging a two-thirds majority to remove Article 19 of the constitution. Already a PIL has been filed by Premadasa against holding elections on June 20. Who knows which party will approach the Supreme Court after June 2 for restoring the missing Parliament.

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