Sri Lanka is facing a crucial period or even the moment of truth in its history with President Mahinda Rajapaksa yesterday officially seeking the opinion of the Supreme Court -- the final and binding verdict -- on whether he has the right to call an early election in his second term and whether he has the right to contest for a third term. This move and the historic verdict to be given within five days, many independent analysts believe, will not only chart the course of Sri Lanka’s future but even the future of democracy with its related checks and balances and virtues such as good governance, accountability and transparency.
During the past few weeks when speculation grew about an early Presidential election -- probably on January 8, which is supposed to be a lucky number -- conflicting claims have been made about the legality of an early presidential election and whether President Rajapaksa has the constitutional right to seek a third term. Former Chief Justice Sarath N. Silva, the Bar Association of Sri Lanka and other legal luminaries say they believe President Rajapaksa has no right to call an early election in his second term and has no right to seek a third term. The former Chief Justice has repeatedly insisted that under the Third Amendment enforced by President J. R. Jayewardene, a president in his second term has no right to call an early election and must serve the full term in this instance till January, 2016. Mr. Silva also insists that since the 18th Amendment which was enforced in September 2010 has no retrospective clause, President Rajapaksa who was elected on January 26, 2010 does not have a right to contest for a third term. The former Chief Justice said he would go to the Supreme Court on this issue after the November 20 proclamation for an early election but President Rajapaksa has preempted Mr. Silva and sought an opinion, which is really a legal verdict from the Supreme Court. The Registrar yesterday informed the BASL and others that if they wished to make submissions on this issue they would need to send in the written submissions before 3.00 p.m. tomorrow.
Whatever the legality or the illegitimacy, the morality or immorality of what is going to happen within the next week, we today wish to focus on a vital factor -- media freedom and the Right to Information Bill. These are essential for a free and fair election to be held whether it is legal or illegitimate.
The Sri Lanka Press Institute (SLPI) on Monday held a meeting on this issue to launch a book on the right to information. Colombo University’s Law Faculty Dean V. T. Thamilmaran said it was now not only a question of knowing about the Government’s secrets but also knowing about the secret government or the hidden state, the likes of which operate in many countries which carry billboards about democracy but are controlled by a small group of family in an authoritarian manner. Mr. Thamilmaran also pointed out that the implementation of the Right to Information Bill -- delayed for various reasons since 2004 – would bridge the gap between the ruler and the ruled. Constitutionally, on paper at least, the people are proclaimed to be sovereign and the rulers are supposed to be the good stewards or servants of the people, elected to serve the people and develop the country for a specified term. Whether what is happening now is anything like that is a matter that apparently needs little debate.
The Rajapaksa government says it wants to make Sri Lanka the hub or miracle of Asia but it needs to be aware that Sri Lanka is the only South Asian country that does not have a Right to Information Bill. The Constitution insists that the sovereign people have the fundamental right to the freedom of expression and information so that they could make not just a choice but an informed choice at any election. When this right is denied to the people, any election -- whether it be legal or illegitimate -- will not be free and fair and therefore not the informed choice of the people.