Dismissal of FR petitions: What follows the Supreme Court Decision?

10 June 2020 04:23 am - 0     - {{hitsCtrl.values.hits}}


The almost feverish celebrations with which some of the SLPP celebrated the Supreme Court decision to refuse leave to hear the petitions challenging the Elections Commissions decision fixing a date for the Parliamentary Election, which all agree, has been way delayed due to the COVID-19 situation were evident on media. Yet what is interesting is the fact that the President, who had already made it clear that even when new Parliament is elected, what he expects is a legislature that does not cause him any trouble or does not get in the way of his ‘future plans’. 

Given the background that President Rajapaksa being a military officer during the height of the civil war and then the Secretary of Defence while his sibling and strongman Mahinda Rajapaksa ruled over a victorious Sinhala military against the terror outfit LTTE, there is little surprise that the current President sees the legislature only as a stumbling block. He must have seen his brother at work and learned a lesson or two.   

Constitutional Vacuum

The constitutional vacuum that exists in relation to a situation where a President does not reconvene a Parliament dissolved, but an emergency, of the nature of the present pandemic, prevents the holding of a General Election to elect a new Parliament, is glaring. It is ironical that a Constitution, even in its pre 19th amendment form, required a referendum for an existing Parliament to extend its term, without holding elections, (as undemocratic and despotic it might seem in itself) has no provision to deal with a situation where a general election could or as it is completely possible, would not be called and consequently, the country runs without a Parliament. Yet what any expert on constitutionalism would say is that the balance of power between the three arms of the State i.e. the Executive, Legislature and Judiciary are things that should rather be maintained through good practice and democratic norms, instead of textually precise provisions in a given constitution. Yet the absence of such practices has been plain to see for all, ever since JR Jayawardena made himself a law unto himself via adept manoeuvrings of the document called the ‘1978 Constitution’, which he himself, fathered.   
But any General Election, if they are to be held, once the Elections Commission calls it, will create a legislature that will be uniquely different from any previous ones. It will have, in every likelihood, at least a simple majority from the party that has the President and on the surface, that should be the end of the story. That is how it has been, at least till the point of the constitutional coup of October 2018. But with the position of the PM strengthened and being made a viable contender for actual power of governance viz[U1]. a viz. the President courtesy of the 19th amendment and none other than the former President Mahinda Rajapaksa tipped to be the next PM, things are about to get interesting for sure. The internal power struggle that already is simmering underneath will come to the surface at every level including State Ministries and Local Government Bodies. Whether the quick and rapid development that the President expects to deliver and the disciplining of the country and efficient administration that many expect him to establish will be possible under such a scenario remains to be seen.  

Things to come 

In any event, how the COVID-19 situation was handled would give us an inkling as to how the President wishes to continue even after the pandemic subsides and the rebuilding of the country commences. The Task Forces that he appoints one after the other, with many military or ex-military officers leading and sitting in them, with very few spaces for civil administration official shows that he trusts the military alone. Even before the Mahinda cohorts are in positions of power, which would invariably be the case after the elections, he is bracing himself to face an assault from within.   
Although it might seem from the surface to be a tussle between a despotically minded President and the leader of the Parliament who gains the support of the majority of  representatives of the people, we all know that is exactly what it is not. It will be a tussle for a total and absolute dominance of the state apparatus including the judiciary. The only question that we all have to keep our fingers crossed for an answer, is which Rajapaksa it will be.   

Opposition impotent 

The Opposition, as divided as they are, with the SJB denting the Ranil Wickremesinghe led UNP further and further, there does not seem to be any force potent enough to challenge the SLPP from whitewashing the elections when they are held. As frustrated as some segments of the populace might be due to how the government handled the COVID-19 situation and the unequal treatment the ordinary man got from the authorities, there was one factor that the Rajapaksas relied on, with substantial success to keep without dispersing, those who supported them at the November 2019 Presidential Elections: the ethno racial tension.   
They were able to draw support from the Sinhala Buddhist society, which is by now, largely ethnically biased and supports a monolith in political power, in militarising the pandemic response, in villainising the Muslim and Northern Tamil community, bulldozing procedures laid down by law and bossing it over the civil authorities. The implied, if not sometimes blatant anti-minority ethos everything the SLPP led activities had, was thus not only condoned but encouraged. Support base galvanized at the Presidential election was kept buzzing and linked by pro- Rajapaksa media, specially the TV channels that blurted out ethnically biased news feed keeping the ball rolling. Cometh the election, this tendency will be whipped up further and with a majority – military mindset, reap handsome dividends to SLPP.  

Independence of the EC

The Supreme Court decision might be interpreted in yet another perspective in which it seems that both the Government as well as the opposition lost. For the opposition, whose supporters filed FR actions, the attempt to postpone elections indefinitely, given the pathetic mess they are in right now, has been thwarted. But for the government too, the urge and the much sought after right, to hold elections before the economic fall out as a result of the ‘great lock-down,’ such as loss of jobs, pay cuts, import restrictions, market failures etc. has now been taken out of their hands and placed in the Elections Commission, which may decide the call after getting the green light from the health authorities.   
The supreme court decision, which has been criticised by many as lacking in brave activism, in a question that has much to do with the matter of public health and security and the very question of viability in terms of democracy, of an election under pandemic strife, nevertheless has opened up for independent activism on the part of the Election Commission.   
How independent that body will be, is a matter still to be seen.   

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