Stop playing chicken
Legal experts, working for the government and the Opposition, peruse the Constitution with the same intention as sinners who read the Bible or any other sacred text; instead of seeking guidance, they look for loopholes. On hearing these legal luminaries interpret constitutional provisions, one asks oneself, like Alice, confused by Humpty Dumpty’s strange diction, whether they can make words mean so many different things. Sadly, the voice of independent experts has got lost in the political din.
We tend to pore over the Constitution the way Brecht reads history through the eyes of a worker, in one of his poetic gems. How come the President has shifted the onus for deciding on the date of parliamentary polls to the Election Commission (EC)? The EC has scheduled the general election for 20 June in spite of the constitutional requirement that the new Parliament meet latest by 02 June, as the national legislature cannot remain closed for more than three months, at a stretch. It has cited the current national health emergency, resulting from the spread of Covid-19, as the reason for its decision.
The EC having postponed the general election to 20 June, and the government refusing to reconvene the dissolved Parliament, it looks as if we had to do a little bit of time travel (like the young lady named Bright, who set out one day, faster than light, and returned on the previous night), hold the election on 20 June and have Parliament meet on 02 June!
Critics of the EC claim that it has succumbed to pressure from the oppositional forces and created a situation where the government is faced with Hobson’s choice anent the calls for reconvening the dissolved Parliament, or the intervention of the Supreme Court can be sought. It is being argued in some quarters that because the government asked the EC to decide on the date of the next general election, the latter has done so, but the question is whether the EC can do so simply because the government asks it to.
Some legal experts argue that the EC decision cannot be challenged in court as per Article 104A on the finality of its decisions and immunity from suit, but this Article should be read with Article 104H, which provides for judicial review. Most of all, the ouster clause at issue and the EC’s immunity should be viewed in the light of the legal principles enunciated in the famous decision in Anisminic Ltd. v Foreign Compensation Commission (1969), in the House of Lords; actions made ultra vires with no proper jurisdiction are subject to judicial review.
The timing of the general election has become a mega issue because the government and the Opposition are in a state of mutual distrust and advancing their political agendas at the expense of the public. The government would have lost no time in reconvening the dissolved Parliament and obtaining legislative approval for fund allocations, etc., if it had had a majority therein. The Opposition would not have pressed for reconvening the dissolved Parliament if it had lacked a majority there; it is trying to gain some political traction and be seen to be making a contribution to the country’s anti-Covid-19 battle, the credit for which the government does not want to share with anyone else. Interestingly, when Parliament was in session, most Opposition MPs did not attend it, much to the consternation of the public, and many of its inquorate sittings had to be adjourned, but now they want it reconvened!
Another reason why the government is wary of reconvening Parliament, at this juncture, is the possibility of the warring factions of the UNP coming together in the event of fresh nominations being called. If the presidential proclamation that dissolved Parliament, in March, is rescinded and Parliament reconvened, the current lists of nominations will no longer be valid, as we reported, the other day. It is possible that the SLFP will coalesce with Sajith Premadasa’s Samagi Jana Balavegaya, in such an eventuality, because the SLPP has short-changed it. The government also fears that the UNP rebels and other parties supportive of them might try to dislodge it through a motion of no confidence if Parliament is reconvened.
The Opposition is scared of facing an election soon. It is apparently working on the premise that it will have a better chance of improving its currently abysmal electoral performance when the economic fallout from the current national health emergency kicks in, causing the popularity of the government to plummet. What is driving it is neither any love for parliamentary democracy nor any concern for the safety of the public; it is only seeking political expediency, just like the government.
The hurriedly crafted 19th Amendment is so flawed that one shouldn’t be surprised if the government tries to ride a coach and horses through the Constitution and the Parliamentary Elections Act to have staggered parliamentary polls. The Opposition seems to have put all its political eggs in the judicial basket, as it were. This is not the time for a politico-legal battle. The country must remain focused on battling the elusive coronavirus.
Let the leaders of the political parties, which were represented in the dissolved Parliament, be urged to adopt the Licchavi method of solving problems, have a parley on the current dispute and find a solution. Some Opposition parties have turned down Prime Minister Mahinda Rajapaksa’s invitation to a meeting of former MPs, at Temple Trees, today. We can only hope that they will stop playing chicken. The party leaders ought to powwow and try to work out a compromise formula if they really feel for the people they live off.
Legal experts, working for the government and the Opposition, peruse the Constitution with the same intention as sinners who read the Bible or any other sacred text; instead of seeking guidance, they look for loopholes. On hearing these legal luminaries interpret constitutional provisions, one asks oneself, like Alice, confused by Humpty Dumpty’s strange diction, whether they can make words mean so many different things. Sadly, the voice of independent experts has got lost in the political din.
We tend to pore over the Constitution the way Brecht reads history through the eyes of a worker, in one of his poetic gems. How come the President has shifted the onus for deciding on the date of parliamentary polls to the Election Commission (EC)? The EC has scheduled the general election for 20 June in spite of the constitutional requirement that the new Parliament meet latest by 02 June, as the national legislature cannot remain closed for more than three months, at a stretch. It has cited the current national health emergency, resulting from the spread of Covid-19, as the reason for its decision.
The EC having postponed the general election to 20 June, and the government refusing to reconvene the dissolved Parliament, it looks as if we had to do a little bit of time travel (like the young lady named Bright, who set out one day, faster than light, and returned on the previous night), hold the election on 20 June and have Parliament meet on 02 June!
Critics of the EC claim that it has succumbed to pressure from the oppositional forces and created a situation where the government is faced with Hobson’s choice anent the calls for reconvening the dissolved Parliament, or the intervention of the Supreme Court can be sought. It is being argued in some quarters that because the government asked the EC to decide on the date of the next general election, the latter has done so, but the question is whether the EC can do so simply because the government asks it to.
Some legal experts argue that the EC decision cannot be challenged in court as per Article 104A on the finality of its decisions and immunity from suit, but this Article should be read with Article 104H, which provides for judicial review. Most of all, the ouster clause at issue and the EC’s immunity should be viewed in the light of the legal principles enunciated in the famous decision in Anisminic Ltd. v Foreign Compensation Commission (1969), in the House of Lords; actions made ultra vires with no proper jurisdiction are subject to judicial review.
The timing of the general election has become a mega issue because the government and the Opposition are in a state of mutual distrust and advancing their political agendas at the expense of the public. The government would have lost no time in reconvening the dissolved Parliament and obtaining legislative approval for fund allocations, etc., if it had had a majority therein. The Opposition would not have pressed for reconvening the dissolved Parliament if it had lacked a majority there; it is trying to gain some political traction and be seen to be making a contribution to the country’s anti-Covid-19 battle, the credit for which the government does not want to share with anyone else. Interestingly, when Parliament was in session, most Opposition MPs did not attend it, much to the consternation of the public, and many of its inquorate sittings had to be adjourned, but now they want it reconvened!
Another reason why the government is wary of reconvening Parliament, at this juncture, is the possibility of the warring factions of the UNP coming together in the event of fresh nominations being called. If the presidential proclamation that dissolved Parliament, in March, is rescinded and Parliament reconvened, the current lists of nominations will no longer be valid, as we reported, the other day. It is possible that the SLFP will coalesce with Sajith Premadasa’s Samagi Jana Balavegaya, in such an eventuality, because the SLPP has short-changed it. The government also fears that the UNP rebels and other parties supportive of them might try to dislodge it through a motion of no confidence if Parliament is reconvened.
The Opposition is scared of facing an election soon. It is apparently working on the premise that it will have a better chance of improving its currently abysmal electoral performance when the economic fallout from the current national health emergency kicks in, causing the popularity of the government to plummet. What is driving it is neither any love for parliamentary democracy nor any concern for the safety of the public; it is only seeking political expediency, just like the government.
The hurriedly crafted 19th Amendment is so flawed that one shouldn’t be surprised if the government tries to ride a coach and horses through the Constitution and the Parliamentary Elections Act to have staggered parliamentary polls. The Opposition seems to have put all its political eggs in the judicial basket, as it were. This is not the time for a politico-legal battle. The country must remain focused on battling the elusive coronavirus.
Let the leaders of the political parties, which were represented in the dissolved Parliament, be urged to adopt the Licchavi method of solving problems, have a parley on the current dispute and find a solution. Some Opposition parties have turned down Prime Minister Mahinda Rajapaksa’s invitation to a meeting of former MPs, at Temple Trees, today. We can only hope that they will stop playing chicken. The party leaders ought to powwow and try to work out a compromise formula if they really feel for the people they live off.
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