Jehan Perera, in Island, 4 May 2020, with this title “President can decide without burdening the courts”
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.
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.
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 utilise 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-takes-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 favour 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 far 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.