By this time next week, the results of the presidential poll would be rolling in. It is very unlikely that the final result would have been announced by the time the newspapers hit the newsstands. Indeed the Elections Commission has said that the final result may not be announced till Monday Nov. 18. Be that as it may, the likely scenario at this election is that the government would be defeated.
The Lanka News Web website which can hardly be described as pro-Rajapaksa, observed somberly after the Elpitiya PS election that over 75% of the electorate had voted against the government. Earlier in February 2018, the government had lost the local government elections. The difference in the number of votes between the newly formed Sri Lanka Podujana Peramuna on the one hand and the UNP and its allies Mano Ganesan, P.Digambaram, Rishard Baithiudeen and Rauff Hakeem on the other, was 1.4 million.
It is of course true that some of the UNP’s other allies such as the TNA contested separately at that election. However, even the addition of the TNA’s votes would still not close the gap. The fact that the JVP has fielded their own leader as a candidate queers the pitch even further. If not for the JVP’s votes Maithripala Sirisena would not have become President in 2015 despite the tsunami of minority votes that he got.
The JVP made up a sizable proportion of the Sinhala votes that Sirisena needed in order to win. The UNP candidate does not have the JVP’s votes this time around. The TNA has expressed support for the UNP candidate, but the present day TNA is not what it was in 2015. Back then, they were the premier force in northern politics. Today, they have suffered splits and between the parliamentary election of 2015 and the local government election of 2018 their vote base in the Tamil heartlands of the Jaffna and Batticaloa districts had dropped by nearly one half.
Thus the TNA is in no position to meet the shortfall in votes. The only way that the UNP can muster the votes necessary to win is to win over the minority voters that no longer vote for the communal and religious political parties already allied with the UNP and to win over Sinhala voters who did not vote for the UNP at the last local government election. This may happen to some extent because Sajith’s nomination has revitalized disgruntled UNPers and among minority voters there is a certain proportion which will not vote for their own communal leaders but will vote for a national leader in order to safeguard their communal interests.
However given the multiple failures of the government that Sajith Premadasa is a member of, and the incumbency factor, winning new votes is a long call. The greater likelihood is that Gotabhaya Rajapaksa will win this election. We have been having presidential elections since 1982, but the President who will take office on Nov. 18 will face a situation that no previous holder of that office ever had to face. In the good old days, victory at the presidential elections meant total victory because Parliament could be tweaked and moulded to suit the holder of the presidency. After the 19th Amendment, winning a presidential election is only a partial victory. The parliamentary election will also have to be won by the same party, to make victory complete.
Length of the transition period
The first situation that will have to be dealt with, is the long interval between the assumption of office by a new President and the date on which Parliament can be dissolved to hold fresh elections. Under the provisions of the 19th Amendment, Parliament cannot be dissolved until the lapse of four and a half years after the day on which that Parliament met for the first time. The present Parliament met for the first time on September 1, 2015 after the Parliamentary election that was held on August 17, 2015. Hence the four and a half year period of the present Parliament will be up only on March 1, 2020.
Under the Parliamentary Elections (Amendment) Act No. 15 of 1988, the nomination period will commence on the tenth day after the Parliamentary election is formally declared by the President and end on the seventeenth day. The day on which the poll should be held should be not less than five weeks and not more than seven weeks after the day on which nominations close. According to these provisions, the minimum time period from the declaration of the Parliamentary election till the day of the poll, is 52 days. If Parliament is dissolved on March 1, 2020 which is the earliest date possible, it will be around 22 April 2020 by the time the poll can be held. In 2015, Parliament was dissolved on 26 June 2015 and the poll was held on 17 August.
Under Article 31(3A)(d) of the Constitution, if the winner of the presidential election is not the President in office, his term commences on the day on which the result of the presidential election is declared. Thus, after swearing in on the 18 November, Gota will have to preside over the UNP Cabinet until the end of the Parliamentary election in terms of Article 47(1) of the Constitution which stipulates that the Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall, notwithstanding such dissolution, continue to function and shall cease to function upon the conclusion of the General Election. This means that Gota will have to work with the UNP Prime Minister and Cabinet for well over five full months from 18 November 2019 till at least 22 April 2020. This is an inordinately long transition period.
This is a Cabinet which for five years had no work to do other than trying to put the Rajapaksas in general and Gota in particular, in jail. Now this Cabinet will find the man they tried so hard to jail, holding office above them as the head of state, head of the government and head of the cabinet and whether they like it or not, they will be compelled to work with him until the conclusion of the Parliamentary election. This is going to be a singularly unpleasant experience for both parties. If Gota wins this election, that means he and the political parties he represents have been given a mandate to rule the country but the UNP cabinet will be sitting where they do not belong, by virtue of the 19th Amendment.
From 1978 onwards, one of the main criticisms of JRJ’s Constitution was that a situation of gridlock will occur if the President and Prime Minister are from two political parties. When this scenario became a reality in August 1994 with Chandrika Kumaratunga becoming Prime Minister while D.B.Wijetunga was the President, things did not turn out too badly. The same thing can be said about the first two years after December 2001 when Ranil Wickremasighe became PM while Chandrika Kumaratunga was President. It was only after about two years when the UNP started declining in popularity that CBK moved in, firstly by seizing control of three key ministries and then dissolving Parliament. The reason why things worked out fairly well in 1994 and worked out satisfactorily at least for a while in 2002-2003 was because the losing party conceded defeat and cooperated with the winner.
If things go according to such precedents after 18 November and until the the end of the Parliamentary election, then there will be no cause to complain. However what happens if such cooperation with the winner is not forthcoming? In the two previous instances in 1994 and 2001, it was a case of the Parliamentary government changing while the President remained the same. So to cooperate with the new parliamentary government was a choice made by a single individual. This time, it will be a case of the President changing while the Parliamentary government remains the same. Formerly, when the President changed, he had the power to dissolve Parliament and hold fresh elections. For the first time we have a President who is barred from doing that.
Caution instead of precipitate action
Some speculate that after the presidential election, there will be a mass of defections from the UNP and the minority political parties to the side of the new President and that the SLPP would be able to muster the 113 seats needed to form a government. This however is unlikely given the fact that a Parliamentary election would be due in a matter of months. Even if this Parliament stays out its full term, it would have to be dissolved by 1 September 2020. If the present Parliament had at least two years of its tenure left, there would have been a better chance of defectors coming over to form a government. The safer option would be to rule out the possibility of defections before the Parliamentary election. No defector has a chance of winning on the SLPP ticket. The situation may change after the Parliamentary election when newly elected MPs are assured of a full five year term.
Given the experience of October 2018, it would be highly impolitic to attempt to form a minority government in the hope that defectors would come over after a government is formed. If there are potential defectors who want to come over, as there will inevitably be, they should be asked to come over first and it is only after the necessary 113 seats are mustered that a government should be formed. Another October 2018 style fiasco between 18 November 2019 and 1 March 2020, could well cost the SLPP the next Parliamentary election. So this will be Gota’s first major test – either finding a way to work with the UNP cabinet till the fourth week of April 2020 or forming a government with the help of defectors – the latter eventuality being highly unlikely.
When Gota becomes President on 18 November, he will have a Parliament where a majority of MPs will be opposed to him. Legally, the President can prorogue Parliament for two months and extend keep extending it. Article 70(3)(ii) allows Parliament to be dissolved even while it has been prorogued. Thus proroguing Parliament may present itself as a tempting option. Indeed some individuals will definitely be pushing for prorogation. However this is an expedient that should not be resorted to as it will give the other side an opportunity to begin a resistance and rise from the ashes of their defeat. In any event, even if Parliament is prorogued, the Cabinet will be functioning until the Parliamentary election is concluded. The last thing that Gota should do is to give the other side an opportunity to re-group and to fight back.
According to Article 43(3) of our Constitution, the President is the head of the Cabinet. However, there is no Constitutional provision which says that the Cabinet stands dissolved when the President changes. Even though the Prime Minister is not its head, Cabinet will stand dissolved if the incumbent Prime Minister ceases to hold office. This anomaly is the result of an executive presidential system being superimposed on a parliamentary system. So even though the President will change on the 18th, the Prime Minister and Cabinet will remain the same. Before the 19th Amendment repealed and replaced Chapter VIII of the Constitution, the old Article 47 stipulated that the Prime Minister will cease to hold office if he is removed by the President or if he resigns or ceases to be a Member of Parliament. Thus, before the 19th Amendment, the President had the power to sack the PM.
However after the 19th Amendment, under the new Article 46(2), the Prime Minister ceases to hold office only if he (a) resigns his office by a writing under his hand addressed to the President; or (b) ceases to be a Member of Parliament. There is now no provision for the President to be able to sack the Prime Minister. When it comes to other Ministers however, the new Article 46(3) which was introduced by the 19th Amendment states that they can be removed from office by the President, but only on the advice of the Prime Minister. Hence any attempt on the part of the new President to sack the Prime Minister or the Cabinet is going to be challenged in courts. The last thing that the new President should do is to give the UNP an opportunity to fight back, with court hearings, and daily press conferences and rallies and the like. The safest way to get rid of the PM and the Cabinet is to demonstrate under Article 42(4) that he does not have a majority in Parliament. If this is not possible, it would be better not to make any attempt to remove the PM or the Cabinet.
The President’s ministries
This is not all. The 19th Amendment is littered with greater perils than the minefields of Vadamarachchi. The incumbent President Maithripala Sirisena holds the Defence, Mahaweli and Environment portolios. However the incoming President does not have the power to hold any portfolios even though he is officially the head of the Cabinet. Before the 19th Amendment, all Presidents held various portfolios under the old Article 44(2) which stated that the President may assign to himself any subject or function and will remain in charge of any subject or function not assigned to a Minister. However this provision no longer exists in the Constitution.
President Sirisena holds the Defence, Mahaweli and Environment portfolios only by virture the transitional provision in Section 51 of the 19th Amendment which enables him to hold those three specified portfolios. This transitional provision ceases to operate with his retirement. In fact before Sirisena bows out, the Prime Minister will have to formally request the President to appoint replacements to be in charge of those three ministries. I have heard at least one JO politician stating on the public platform that the next President will have the power to hold the defence portfolio by virture of Article 4(b) which states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President.
Despite anything it may say about the President exercising the executive power of the people including the defence of Sri Lanka, Ministers were never appointed under Article 4(b) of the Constitution. The old Article 44(2) which enabled the President to assign any subject to himself, or to hold any subject not assigned to another Minister, has been repealed. Hence any attempt by the new President to retain control of the Defence ministry will definitely be challenged in courts and as we said earlier, that is just about the last thing that the the SLPP needs. In the FR case filed against the dissolution of Parliament and the calling of a Parliamentary election last year, the Supreme Court made it very clear that they have no option but to uphold the intent of Parliament as reflected in the 19th Amendment. The SC stated quoting various legal authorities that:
“Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be.” And further that “It is not competent for the court to proceed on the assumption that the legislature knows not what it says, or that it has made a mistake. We cannot assume a mistake in an Act of Parliament. If we think so, we should render many Acts uncertain by putting different constructions on them according to our individual conjectures. The draftsman of the Act may have made a mistake. If so, the remedy is for the legislature to amend it.”
So however insane the provisions of the 19th Amendment may be, the judiciary is not going to pull any chestnuts out of the fire for the politicians. Instead of doing anything that has even the slightest chance of being challenged in courts, the best arrangement would be for the next President to use Article 129(1) of the Constitution and invoke the consultative jurisdiction of the Supreme Court whereby the President can refer a query to the SC and specify the time within which a response has to be given. Since President Sirisena has given even Article 129 a bad name, it will be best if the next President makes just one reference to the SC covering all the outstanding issues and situations that are likely to arise during the five month transition period.
Victory for the SLPP is not the issue. They will win. But what counts after that is how well the long drawn out transition is handled during the unavoidable gap between the presidential and parliamentary elections. After the last local government elections where the newly formed SLPP created world history by being the only political party in a two party democratic system to trounce the two established political parties to become the largest political party in the country, there was a series of costly fiascos and setbacks which occurred as a result of overconfidence and a lack of strategic thinking and careful weighing of options on the part of some members of the Joint Opposition.
After this presidential election, any ill-thought out precipitate action taken in the sarong-hitched-up-high mode, will seriously affect the prospects of the SLPP at the Parliamentary election. Without a working majority in Parliament, the Presidency that Gota wins will be next to useless. Hence the Parliamentary election has to be seen as the second leg of the presidential election. Negotiating the political minefield between the presidential election and the parliamentary election will be Gota’s first test. All that happens after the presidential elections should be designed to increase the SLPP’s votes at the parliamentary elections.
All that is necessary is the avoidance of unnecessary risks, careful study of the options available, the willingness to do whatever it takes to achieve the stated objective and above all to keep the people in the loop. This is not something that the politicians can do on their own. The people will have to be informed and mobilized. What is necessary is to turn the presidential election result into the beginning of a revolution. The presidency and the local government institutions will belong to the SLPP, but the parliamentary government will still be with the defeated and desperate yahapalanites. If the final battle that commences after the 18th is fought properly, it will undoubtedly enhance the SLPP’s prospects at the parliamentary election.