Sunday Observer Editorial

A clear verdict for Democracy

The Supreme Court judgment last week on the dissolution of Parliament is a vindication of President Gotabaya Rajapaksa’s actions. The Court verdict made it clear that President Rajapaksa had acted within the confines of the Constitution in dissolving Parliament after it had run its course for four and a half years.

The Apex Court had also in principle accepted the argument that a ‘dead’ Parliament cannot be recalled back to life. In the backdrop of the massive mandate given to President Gotabaya Rajapaksa on November 16, 2019, it is clear that the ‘old’ Parliament had clearly lost its mandate to govern. Recalling it would have made a mockery of that popular mandate given to President Rajapaksa.

While there indeed are provisions to recall a dissolved Parliament in the Constitution, the qualifying factor is a dire emergency. Since the Coronavirus was controlled to a great extent within our borders, there was no such emergency to justify recalling the old Parliament. While it is true that Parliament has power and control over State finances, the President has the authority to use funds from the Consolidated Fund until such time an election is held. In fact, just last week, the President allocated Rs. 1 trillion for various services and development projects from the Fund.

But a country cannot go on forever without an effective sitting Parliament. This has indeed been the position of President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa. They have been pushing for General Elections to be held as soon as possible subject to health sector clearance and guidelines. For whatever reason, certain political parties and civil society groups have been trying to block or postpone the elections. As Prime Minister Mahinda Rajapaksa said recently, normally it is Governments that try to evade elections while the Opposition demands them. In this instance, these roles have been reversed, he said.

The Opposition’s claim that elections should be held only when the virus is completely controlled or eliminated does not hold water since many local and international health experts predict the virus will be with us for at least two more years. Even if a vaccine is made available at least by this time next year, not all the seven billion people in the world will get it at once. Thus we are possibly looking beyond a two-year window until the Coronavirus is eradicated, if ever.

It would be a crime to deny the voters their franchise for such a long period of time. Now that the country has been opened and normalcy has been more or less restored, there can be no more excuses to delay the General Election beyond the 60-70 days required by the Election Commission for logistical arrangements and for political parties to campaign (The polls date is likely to be announced on Monday by the NEC).

Besides, the Director General of Health Services has provided very clear guidelines on holding the election under the present circumstances, including the deployment of health personnel at all polling stations, temperature checks and hand wash facilities. The only practical problem we can foresee is the identification of voters with face masks, but this should be a matter of asking them to remove it momentarily for the presiding officials to check against the ID card.

Sri Lanka is not the only country going through this experience. Eight other countries including South Korea have successfully held elections, sometimes in worse Coronavirus conditions than ours. The polls held in South Korea have been hailed as the most successful electoral exercise ever held there. Our health and electoral officials should study this model and take any appropriate lessons to suit the local context and conditions. Neighbouring India and Singapore are also planning to hold elections soon and our officials could get in touch with them too.

Now it is up to political parties to instill discipline in their supporters and activists to ensure that they do not violate social distancing and hygiene norms at any time. Huge rallies are unlikely and even pocket meetings have been restricted to 30-50 people seated or standing according to social distancing rules. Perhaps this will bring politicians closer to the people than on previous occasions, when they could only be seen from a distant stage.

Political parties will also look to the electronic media to take their message across, but one wonders whether airtime can be given to hundreds of candidates within a limited time frame of two months or so. Social media is the other obvious platform, but this is fraught with danger due to the possibilities for malicious mudslinging, outright fabrications, fake news, deep fake videos, trolls and targeted ads bearing false accusations against opponents. Political parties will necessarily have to ‘police’ the content posted by their candidates to avoid such ramifications.

This is also an ideal opportunity to ponder why our elections authorities have seemingly abandoned the idea of electronic voting, which would have made things easier for all, despite earlier demonstrations and commitments. In some countries, it is even possible to vote online from the comfort of your own home. Going forward, serious thought must be given to this idea.

The one lesson we should learn from the present experience is that we should not let an invisible virus defeat us and take our freedom away. An election is perhaps the supreme expression of freedom and now we have a chance to savour it again. It is now our duty to vote and reinforce our democratic ideals.

The Island Editorial

Thonda power

As public optimism grows that the lock down/covid restrictions would be further relaxed this week, a short reader's letter that we publish today raises a question that is in many people's minds. Did not the good sense that applied in imposing an island-wide curfew on Poson Day (Friday) and the day before not apply to late CWC leader Arumugam Thondaman's funeral upcountry? True, a curfew was imposed in the Nuwara Eliya district on the Poson and pre-Poson days. But the television coverage of the funeral clearly showed the whole country that large crowds converged for the event, officially described as one with state patronage (as opposed to a state funeral?). There was no social distancing and both Prime Minister Mahinda Rajapaksa and his son, Namal, were caught on camera hugging the late Thondaman's son in sympathy. It would have been an obviously impossible task for police to enforce health safety rules at such an event just as much as it would have been impossible to impose them at Mihintale where tens of thousands flock on Poson Day every year.

A parliamentary election is approaching and we'll know the date when it will be held on Monday, Elections Commission Chairman Mahinda Deshapriya has said. The Ceylon Workers Congress which has over the years delivered a bloc of Indian Tamil estate votes to rival parties and groups contending for national power is now a member of the Sri Lanka Podujana Peramuna (SLPP)-led alliance. The late Arumugam Thondaman had handed his nomination for the forthcoming election. Given his demise, the SLPP has nominated the late leader's son to his vacancy on their candidates list for Nuwara Eliya. This was on a decision of Prime Minister Mahinda Rajapaksa who opted for Jeevan Thondaman, Arumugam's son, over a nephew, Senthil Thondaman, who is also a contender for CWC leadership. What will eventually happen within the CWC over the leadership issue is still an open question with Senthil commanding support and influence in the union and Jeevan claiming an inherited legacy. However that be, the political interests of the SLPP, seeking a two thirds majority in the next parliament, obviously took precedence over the safety interests of the whole country in the matter of Arumugam's funeral in the present lock down situation.

This is a fact of life that we Lankans have to live with perhaps a price of democracy. Whatever political dispensation that is in office will always bat for the home side. Hopefully, the ignoring of the safety rules will have no repercussions. There was a report that a journalist covering Arumugam's death both in Colombo and upcountry had developed some symptoms but was ruled negative for Covid-19 after testing. Generations of Thondamans have wielded enormous political power in this Island during the post-Independence period as vividly recounted in a contribution to this issue by Rajeewa Jayaweera, a regular contributor to our newspaper. Obviously 'Thonda Power' flowed from the CWC's ability to deliver a crucial bloc vote to whichever side they favoured during an election. These votes obviously mattered over safety considerations.

A statue of the late Mr. S. Thondaman, Arumugam's grandfather, stands outside the old Parliament building which is now the Presidential Secretariat, where many of the political 'greats' of this country are similarly remembered. Savumiamoorthy Thondaman undoubtedly was of great service to his people who were unjustly disenfranchised by the Ceylon Citizenship Act of 1948. He shrewdly wielded the clout he commanded to deliver a plantation bloc vote to suit the swings of the political pendulum. This enabled him to serve as a minister in different governments which, no doubt, enabled him to serve his people. The junior Thondaman who's just passed away, was not a patch of the old block who commanded the respect and affection of his people for the great service he had rendered them. The dynasty continues. Whether the thousand-rupee daily wage for plantation workers that Arumugam discussed with Prime Minister Rajapaksa will also be part of a short-term package is also to be seen.

Reasons later?

Whether the five-judge bench of the Supreme Court which delivered a unanimous judgment on far-reaching constitutional issues over the country being without a parliament for the last several months as a result of the covid pandemic, did not adduce any reasons for its decision. Nor did it say reasons later as it is often done. The court is not obliged to give its reasoning on a Leave to Appeal matter as it must if the case itself was heard. Given the issues involved, the nature of the case itself and the sharp division of opinion on either side of the political divide, it is most unlikely that reasons would be given in present context. Rajan Philips, our widely respected columnist, writing in this page has offered an incisive analysis on this matter and its possible repercussions in the short to medium term which we commend to our reader.

There is no doubt that President Gotabaya Rajapaksa acted well within his powers in dissolving Parliament. This was not contested by the appellants who claimed that their fundamental rights had been violated by what followed the dissolution. Parliament is unquestionably a continuing institution and the periods in which it is in abeyance is constitutionally prescribed. A prorogation, for instance, can only be for a period of two months. A new Parliament must be elected within three months of the dissolution of its predecessor, but the current situation did not make that possible. If a presidential election intervenes between a dissolution of Parliament and an election of its successor, a period of four months from the dissolution and the sitting of a new Parliament is permitted. If the election is called at the end of a prorogation, then a period of five months will elapse between a dissolution and the election of a new Parliament. Article 70 of the Constitution provides for all these matters indicating there had been careful thought about all possibilities. But the totally unanticipated pandemic has turned everything topsy turvy.

The government, seeking a two thirds majority in the new Parliament, is anxious to have an election as early as possible on the nominations already submitted. If fresh nominations are called, the deeply divided UNP has another chance to sink its differences. But this is not to be. The court has not set an election date which remains the prerogative on the Election Commission which is firmly on record saying that it will act only in accordance with the health guidelines. It is the wish of the whole country that no liberties would be taken with these for the sake of expediency. So let us wait and see whether it is June, July or August or even later.

Sunday Times Editorial

The need to safeguard constitutional governance

The Supreme Court this week dismissed in two sentences, petitions relating to the constitutionality of Executive Presidential decisions. It disallowed the petitioners Leave to Proceed with their cases thus not having to give detailed reasons for their decision.

This decision has legitimised those Executive decisions challenged before the court though one of the issues, that of holding – or not holding a parliamentary election on June 20 now is of academic interest.

Had the Parliament elected in 2015 been allowed to run its full term, these elections would anyway have been held only in October this year. There’s now a sense of urgency on the part of the Government, however, to rush through an election before the deteriorating economy gets any worse.

Public health notwithstanding owing to the COVID-19 pandemic, there is no question that a parliamentary election is high priority — not so much for the reasons trotted out by the Government, but because a country sans an elected Parliament for too long is not in the best interests of Constitutional Government.

Administering a nation by Executive Presidential fiat for an extended period is fraught with potholes on the democratic highway. The Government stubbornly refused to recall the old Parliament opting to interpret the Constitution the way its hurrah boys saw it. It was no different to past Governments. The sum effect of it, however, is the country sliding into dangerous terrain in representative Government.

The fact that the Executive President is a former Army officer and prone to placing ex-military personnel in key public sector posts gave credence to those who saw a trend towards the seeds ‘militarisation’ seeping in to an otherwise civilian administration.

The Prime Minister defended this exercise arguing that retired military officers are “civilians”. That premise is technically correct, but wears thin when gun-toting security forces personnel accompany such civilians when they have a job to be done.

The Executive Presidential system sees two countrywide elections costing some Rs. 15 billion because a President and a Parliament have to be elected.

Questions of whether the President has powers to use public funds from the Consolidated Fund after last Tuesday (June 2) also seem academic now. The Government is simply forcing the pace with its own interpretation of the Constitution with no legal or even political impediment to stop the ruling juggernaut from doing as it pleases.

The Government may want to change the Constitution but till it does that it must not trample or make a mockery of the Basic Law of the country. It appears that the Government is getting increasingly comfortable the way it is going about its business in a footloose fashion, administering the nation without a Parliament, without a declared State of Emergency, without a Budget or Vote on Account.

All its actions cannot be put on COVID-19. There’s a need to recalibrate this unorthodox arrangement and bring the country back on track towards proper Constitutional Government before it strays too far from it towards one-party rule.

Human rights: Searchlight on America

This past week has seen much of global attention diverted from the COVID-19 pandemic to the outbreak of angry protests in the United States of America (USA) over the cold blooded murder laced in racism by policemen of an innocent man on a street in the state of Minnesota.

The ongoing happenings sweeping the US and spreading to other parts of the world must be so embarrassing for that country’s State Department that has hectored the world about human rights and pontificated on the treatment of minorities to other nations. Condemning authoritarian rulers in countries that do not promote their agenda, the US State Department is seemingly hoist with its own petard.

The incumbent US President is in the eye of this storm. Not having won the popular vote, he has been gunning for the minorities in his country ever since he became a virtual default President. Accused of being a ‘white supremacist’, the Mayor of Atlanta said in an understatement that the US President was “throwing matchsticks into the fire” by his utterances on the ongoing rioting throughout the country.

Some Governors, Mayors and Police chiefs have asked the man to keep his mouth shut and his fingers off tweets. Some Americans may think he is a jackass and a dangerous jackass at that, but he remains a hero to a group of Americans who want to see him re-elected come November.

For Sri Lanka, a President such as this is not all that bad. He has pulled his country out of the UN Human Rights Council where his predecessor sponsored a resolution against Sri Lanka. The Diaspora lobby of the rump LTTE may win over some Congressmen, but the State Department’s wings are clipped today. Mixed signals from the White House make the ‘bleeding hearts’ (overseas) in the State Department a shadow of what they were in terms of articulating US foreign policy and in bullying smaller nations with homilies on good governance.

An old wound has opened up again in the US; it is called institutionalised racism. Abraham Lincoln abolished slavery (African slaves were treated as property not humans); Lyndon B. Johnson signed the Civil Rights Act of 1964 after a million people marched to Washington DC the previous years under the leadership of Martin Luther King, to give black Americans equal rights hitherto enjoyed only by whites, including the right to vote.

These past few days have seen millions of liberal, educated white Americans stand shoulder-to-shoulder with those protesting continuing racial discrimination in their country. Yet, many Americans just cannot seem to rid themselves of the anti-black, anti-brown and anti-Hispanic DNA in their blood. The world’s searchlight on human rights and minority rights is now on them.