By C. A.Chandraprema
Sri Lanka has had presidential elections in 1982, 1988, 1994, 1999, 2005, 2010, and 2015 but never one like the present election. With just two working days to go to the close of nominations, a former local government head from Galle petitioned the Supreme Court seeking an order calling off the election. Thankfully, this was dismissed by the SC. But the attempt to knock out the principal opposition candidate from the race even before it began, was heard in the Appeal Court over three days throwing the entire opposition election campaign into a state of uncertainty. Several weeks ago, in an article titled “Geetha, Gota and the Elections Commission”, this writer pointed out that Gota’s citizenship matter had been sorted out to the maximum extent it could ever be, citing the Appeal Court and Supreme Court judgements in the Geetha Kumarasinghe case.
It was not as if the Appeal Court was hearing a case involving dual citizenship certificates and renunciation of foreign citizenship etc. for the first time. This is ground that the AC has already gone over. On Friday, after hearing the arguments presented, the Appeal Court dismissed the petition filed by two yahapalana activists Chandragupta Thenuwara and Gamini Viyangoda seeking an interim order prohibiting the recognition of Gotabhaya Rajapaksa as a citizen of Sri Lanka. As things turn out, Thenuwara and Viyangoda have unwittingly done Gotabhaya Rajapaksa a favour by filing that petition and enabling the latter to prove conclusively that there is no issue with regard to his present Sri Lankan citizenship. This columnist warned in two full page articles published some weeks ago, of the power that the Elections Commission assumes in the event an objection is received regarding a candidate’s qualifications to contest a presidential election and the need to take precautions.
Now Thenuwara and Viyangoda have served up the best possible precaution on a platter. This is not something that the Gota camp could have done by themselves even if they had tried! According to the Presidential Elections Act, there are only three grounds on which objections can be raised to a nomination. Firstly, ‘that it is apparent from the contents of the nomination paper’ that the candidate is not qualified to be elected as President; secondly that the candidate is disqualified by reason of conviction by a court of law for a corrupt or illegal practice or an election malpractice; and thirdly, that civic disability has been imposed on the candidate by Parliament.
When it comes to objections raised on the second and third instances, the Elections Commission cannot decide on its own but has to refer such objections to the Supreme Court within three days after the day of nomination. Such petitions have to be heard by a five-member bench of the Supreme Court within a period of seven days. Unless and until the Supreme Court decides to uphold the objection the candidate concerned will stand nominated.But when it comes to objections based on a candidate’s qualifications, the Elections Commission assumes unbridled power. The Elections Commission itself will decide what the term ‘apparent from the contents of the nomination paper’ means in a context where the nominations paper is directly connected to the Constitutional provisions listing the qualifications of a presidential candidate through the declaration that the candidate signs.
The power of the Elections Commission in this regard was hanging like a sword of Damocles over Gota’s candidacy and one never knew what would happen on the 7th after nominations closed. The Appeal Court decision now eliminates that uncertainty, and also precludes other candidates from carrying on a negative campaign against Gota by casting doubts about his citizenship. Gota is personally indebted to Thenuwara and Viyangoda for having got this matter cleared up once and for all. This unequivocal decision of the Appeal Court will no doubt give the SLPP campaign a boost. Next Friday there will be the Elpitiya PS election which the SLPP is tipped to win by a comfortable margin – which will give the SLPP campaign yet another boost.
Fragmentation of the yahapalana vote
Last week, Sajith Premadasa tried to get Maithripala Sirisena’s support for his Presidential bid. However, he has not yet approached the JVP, which is very surprising because the single most important factor that will decide the fate of the yahapalana camp at this election is not really the SLFP or Maithripala Sirisena but the JVP. Even if Maithripala Sirisena personally joins the UNP campaign, it is very unlikely that he will be able to carry the SLFP rank and file with him into the UNP. Unlike the SLFP, the JVP voters are an integral part of the yahapalana camp. If not for the JVP votes at the 2015 Presidential election, Maithripala Sirisena would have lost. This time, for the first time since Rohana Wijweera contested the Presidency, the JVP has put forward their own leader as the Presidential candidate and will be compelled to put their best foot forward and to win the maximimum number of votes possible.
In 1982, Rohana Wijweera contested the Presidency as a Marxist candidate and fared poorly. This time the JVP has shed all such encumbrances and are going for broke to win votes from all and sundry, Marxists and non-Marxists alike. Every vote the JVP takes will be from the yahapalana camp. The differences between the JVP and the pohottuwa types have built up over nearly a decade and no pophottuwa votes will go to the JVP. The agenda that the JVP has espoused also appeals to a yahapalana constituency and not to the pohottuwa constituency. The JVP has been with the yahapalana crowd for a decade so the likelihood of the UNP candidate being able to get the JVP vote is much higher than him being able to get the SLFP vote. So Sajith would have been better off wooing the JVP rather than Sirisena.
Almost all the other ‘also ran’ candidates are those who would have been with the yahapalana camp in 2015, including former Army Commander Mahesh Senanayake. The latter was among the officers sent on compulsory retirement in 2010 in what was described as a ‘military purge’ by the Rajapaksa Government against officers deemed loyal to the fomer Army Commander Sarath Fonseka. Mahesh Senanayake returned to the country after the change of government in 2015 and was reinstated in the Army. Mahesh Senanayake’s motivation to contest the presidential election would come from his bitter experiences of 2010 and perhaps a need to get his own back on the Rajapaksas by siphoning off some military votes from Gotabhaya. The organization supporting Senanayake, are clearly yahapalanites.
So it appears that virtually all the ‘also rans’ will be eating into the yahapalana vote bank instead of the SLPP vote bank. The appeal of the also rans are also pitched at the disappointed yahaplana voter of 2015 rather than the pro-Rajapaksa voter. It’s a moot point as to whether the also rans would be able to appeal even to the new voters who have come of age during the past five years.
The contest for an emasculated presidency
What is puzzling is why a record number of ‘also rans’ would want to contest the emasculated presidency that exists at present. One of the first to point out that this presidency is not what it used to be, was Dr Nihal Jayawickrema and he is absolutely right. The powers of the presidency in the 1978 constitution rested on three pillars – the President made appointments to all the most important positions in the state such as Supreme Court judges, the Attorney General and the Inspector General of Police. It was the President who appointed and dismissed Cabinet Ministers and in addition to assigning subjects to Ministers, the President could assign any subject to himself. Finally, it was the President who had the power to dissolve Parliament at his discretion. The 19th Amendment has dislodged all three pillars of Presidential power and the position is no longer the pivot on which all political power rests.
Now, the President cannot make any important state appointment except in mandatory consultation with the ten-member Constitutional Council. This mandatory consultation can take place in two ways. The Constitutional Council was to recommend to the President persons for appointment as Chairmen or members of the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission. In such cases, it was the Constitutional Council that was to take the initiative by recommending persons suitable to be members of the independent commissions. In the case of important offices of the state such as the Judges of the Supreme Court and Court of Appeal, members of the Judicial Service Commission other than the Chairman, the Attorney-General, the Auditor-General, the Inspector-General of Police, the Ombudsman and the Secretary-General of Parliament the roles were reversed with the President making the recommendation of the candidate to the Constitutional Council and the latter indicating its approval or disapproval. Either way, it’s the Connstitutional Council that has the real say in making these appointments.
Article 70 of the Constitution has been amended so as to make it impossible for Parliament to be dissolved before the lapse of four and a half years unless Parliament resolves to dissolve itself by a resolution passed by two thirds of its total membership. According to Article 43 of the Constitution as amended by the 19th Amendment, it is the President who will determine the number of ministries and the subjects and institutions that are to be assigned to those ministries. He may, only if he deems it necessary, consult the Prime Minister in doing so. However, when appointing individual MPs to hold these ministries, the President is mandatorily required to consult the Prime Minister. After the Cabinet is formed in this manner, the President may at any time change the assignment of subjects and functions and the composition of the Cabinet. Article 43 is silent on the question whether the President is required to consult the PM when he changes the assignment of subjects and functions and the composition of a Cabinet that has already been formed. However, the wording of Article 43(2) seems to suggest that in appointing MPs to be Ministers, the President cannot avoid consulting the Prime Minister whether it be before the Cabinet is appointed or afterwards.
Most importantly, the provision in the Constitution in the old Article 44(2) whereby the President could assign to himself any subject or function and was to remain in charge of any subject or function not assigned to any Minister, has been repealed. What this means is that a future President will not be able to assign any subjects to himself or even remain in charge of the subjects not assigned to any other Minister because the provision that made it possible for the President to hold some subjects by default now no longer exists in the Constitution. The repeal of the provision that enabled the President to assign any subjects to himself or to hold the subjects not assigned to anybody has reduced the power of the President drastically. The incumbent President Maithripala Sirisena holds several ministries including that of Defence only because of a transitional provision in the 19th Amendment which will lapse when his tenure ends in a few weeks. The next president will not have any power to assign Ministries and subjects to himself – not even the Defence ministry.
Furthermore, the 19th Amendment has made it possible to challenge actions taken by the President by way of a fundamental rights application. This provision was put to the test last October when the President dissolved Parliament and the resulting judgment has taken even more power out of the hands of the President. Even though the President’s powers have been reduced by the 19th Amendment, the Prime Minister’s role has not been properly defined. He is the PM and sits in the Cabinet, but he is not the head of the Cabinet. He is not the head of the government either – both those titles still belong to the President. The PM has a tenuous hold on power through Article 43(2) which makes him the effective appointing authority of Ministers. Despite the ematiated state of the presidency at present we have a record number of candidates – which seems to indicate that they have not read the 19th Amendment properly!
Five month plus cohabitation period
As the negotiations between the SLPP and the SLFP floundered over the question of the pohottuwa symbol, Mahinda Rajapaksa was heard making a new argument to the effect that because Gotabhaya Rajapaksa was not a sitting or former Member of Parliament, he has to contest as the nominee of a recognized political party and that a deposit had been already made in his name by the SLPP and that he would not be able to hand in nominations through another political party. This is a reference to Article 31(1) of the Constitution which states that any citizen who is qualified to be elected to the office of President may be nominated as a candidate for such office by a recognized political party. However, if he is or has been an elected member of the legislature, he can be nominated by a political party which has not been recognized by the Elections Commission or by an elector whose name has been entered in any register of electors.
Whoever gets elected President will find that the first few months will be the most difficult period of his tenure. If Gota is elected, he will have to co-habit with the UNP led Cabinet for over five months. If Sajith wins he too will have to cohabit for more than five months with a Prime Minister and Leader of the House who tried their damnest to prevent him from becoming the UNP Presidential candidate. Why the co-habitation period extends to five months can be explained as follows: According to Article 31(3A)(d)(ii) of the Constitution, if the person declared elected as President is not the President in office – which will be the case inevitably at this election – hold office for a term of five years commencing on the date on which the result of such election is declared.
This means that the new President will have to be sworn into office on the 17th Novermber 2019. In terms of Article 70(1) of the Constitution, the President cannot dissolve Parliament at his discretion until the expiration of four years and six months from the date of its first meeting. The present Parliament met for the first time on 1 September 2015. Hence, the 1st March 2020 will be the earliest date on which the present Parliament can be dissolved by the new President. At presidential elections it is the Elections Commission that calls for nominations and fixes the date for the poll when the incumbent President either declares an early election or when the incumbent President’s term nears completion. However, when it comes to Parliamentary elections, in terms of Article 70(5)(a) of the Constitution, it is the President who dissolves Parliament. The dissolution can be an early dissolution or a dissolution upon the completion of the five year Parliamentary term.
Either way, it is a mandatory requirement that the President’s proclamation dissolving Parliament has to fix a date for the election of Members of Parliament, and also has to summon the new Parliament to meet on a date not later than three months after the date of the Proclamation calling the election. There are other requirements as well. In terms Section 10(1) of the Parliamentary Elections Act No: of 1981, the President shall, in every Proclamation dissolving Parliament specify the period during which nomination papers shall be received by the returning officer during normal office hours at his office; and the date on which the poll shall be taken. The nomination period shall commence on the fourteenth day after the date of publication in the Gazette of the Proclamation dissolving Parliament and expire at twelve noon onthe twenty-first day.
The date fixed for the poll shall be not less than three weeks and not more than eight weeks from the closing day of the nomination period. What these provisions mean is that if the new president dissolved Parliament on the very first day that he is able to constitutionally dissolve parliament, which is on the 1st March 2020, it will take an absolute minimum of 42 days to hold the elections after the proclamation dissolving Parliament. Due to intervening Poya Days or other public holidays, it will be impossible to hold the Parliamentary election within the minimum possible period. What this means is that the new President who will have to assume office on 17 November 2019 will have to work with the present Cabinet of Ministers until the Parliamentary election is concluded some time after 17 April 2020 at which point the present cabinet of ministers will cease to hold office – a full five months and more.
The long transition period from November 2019 to April 2020 when the new President will have to work with the present Prime Minister and Cabinet will be a trying period for whoever wins the Presidential election. If the opposition candidate is elected President, he will have to deal with a hostile prime minister, a hostile cabinet and a hostile Parliamentary majority. If the government’s own candidate wins in circumstances where the Presidential candidacy was yielded only in the most acrimonious circumstances, there is the distinct possibility of intra party conflicts emerging with renewed ferocity as those who backed the government party candidate move in to claim their reward.