By Dinesha Samararatne
Governance in Sri Lanka, is once again, on familiar ground; a constitutional crisis, or at the very least, a constitutional conundrum. In the main, we are presented with two alternatives. Neither of these alternatives seem attractive at first brush; reviving a Parliament that had a mixed record in which we had a minority government since November 2019 or conducting a general election during a pandemic to elect a new parliament. The legality of the curfew and approvals for public spending beyond what has already been approved are two other serious issues that have arisen. As it is often the case in Sri Lanka, public debate on these matters is polarized. The COVID 19 pandemic has led to a crisis in public health. It has also caused a crisis in governance.
Sri Lanka’s response to the pandemic is led by the President, with the active leadership of the military. A COVID-19 Health Care and Social Security fund has been established with donations of more than LKR 800 million. The President has appointed one of his brothers to manage this fund. The entire Sri Lankan population has been confined to their homes for several weeks without a clear legal basis for the curfew. The exercise of public power is being centralised beyond the high level of centralization that the Constitution already provides for. As citizens, how should we evaluate these developments?
What lies beyond a first response?
Undoubtedly, this is a global crisis with an indefinite lifespan. The government’s first response, even if slightly delayed, is to be commended. Others who stepped in to ensure delivery of provisions are also to be commended for adapting very quickly to this crisis. The restriction of movement might be an immediate response to slow the spread of the virus, but it cannot be the only response to this complex and dynamic pandemic. Questions about capacity for testing, criteria for testing, capacity for intensive care, personal protective equipment for healthcare professionals and policies on border control must be resolved. Policy decisions and programmes must be revised as ground conditions evolve. Economic policies and decisions must be devised including for debt servicing, regulation of imports and exports and measures for supporting the different sectors that have been affected. Provision of welfare and education are two other equally affected sectors that require immediate policy, planning and programmatic interventions. Now, more than ever before, the state must deliver efficiently, responsively and in a sustained manner.
The state’s capacity to deliver depends on the availability of resources and the capacity of its institutions. Ultimately, however, the overall impact of its response will be determined by the values and principles that its agents are committed to. Is it committed to accountability? Is it committed to acting on evidence and reason? Is it responsive to needs of the public and not only those with privilege and power? Over time, constitutional democracy has been developed as a system in which governments can be compelled to remain committed to these values and adhere to these principles. While it may be a system with flaws, it remains the ‘least-worst’ alternative for governance, even during a pandemic.
Protecting the public good
If Sri Lanka is to remain a constitutional democracy during this pandemic and after, its responses must be in accordance with our Constitution and within the spirit of constitutionalism. Similar to the ‘public health’ of the population, which is an intangible ‘public good’, the maintenance of a ‘constitutional democracy’ is also a ‘public good’. Public goods are those values that are essential for our collective well-being. It is like the air that we breathe. None of us can own it, protect or nurture it through our individual efforts alone. But our well-being is under threat if the public good is endangered.
Preservation of the public good is central to the idea of ‘a state’ and of a constitutional democracy. In a constitutional democracy public power can only be exercised according to the mandate given by the Constitution and only to the extent to which it has been given. So, even though the restriction of movement is necessary at this time, it is also necessary that it be enforced according to law. It has been pointed out, clearly and convincingly, that the curfew that is purportedly imposed in Sri Lanka, has no clear legal basis (‘Balancing efficiency with law and liberty: Dealing with the pandemic without democratic backsliding’ by Asanga Welikala and Suren Fernando, Daily FT , April 8, 2020). The options that are available to the President to regularize this restriction of movement and to bring it within the realm of legality have been pointed out. Even though we can agree that the restriction of movement is the need of the hour, until these restrictions are issued according to law, they will remain unconstitutional.
Parliament and General Elections
Of course, in acting according to law, the President cannot act alone. After all, he is only the head of the Executive branch of the Sri Lankan state. Even in issuing emergency regulations, the President must work together with Parliament as those regulations have to be tabled and approved by Parliament. Similarly, the declaration of emergency must be approved by Parliament. If individual rights are violated due to the enforcement of such regulations, the Supreme Court may review and remedy such violation. Furthermore, if the Government is to act according to law in its short and long term responses to this crisis, the passing of laws and allocation of public finances can only be carried out by Parliament (Statement by former MP Mangala Samaraweera published in Daily FT, March 26, 2020).
This brings us back to the question about the when and how of general elections (‘Parliamentary Elections 2020: A Point of View’ by Prof Savitri Goonesekere, Groundviews, April 30, 2020). At a time when social distancing is the order of the day conducting a general election makes little sense from a practical point of view. Sri Lanka cannot take the threat of a surge in infections lightly. At the same time, holding elections on time is central to the preservation of Sri Lanka’s constitutional democracy. As has already been pointed out, a new Parliament must be convened within three months of the dissolution of the previous Parliament, that is to say by June 2. The June 20 (the date for conducting the elections) is well past that constitutional deadline. The President has announced that he will, under no circumstances, convene the Eighth Parliament of Sri Lanka. However, under the Constitution, his discretion in this matter can only be exercised according to the text and spirit of the Constitution. Leaders of the political parties in the Opposition have, on the other hand, pledged to support the President constructively in the spirit of bipartisanship if re-convened (‘Can Sri Lanka put politics aside in a pandemic?’ by Gehan Gunatilleke Daily FT, April 22, 2020). The Speaker is reported to have endorsed the proposal for reconvening Parliament.
The Eighth Parliament of Sri Lanka, which was mobilized around the idea of ‘good governance’ had a mixed record. This mixed record may have been cause for disenchantment with the Parliament as a democratic institution. But our dissatisfaction and frustration with our political elite must not be conflated with our commitment to remaining a constitutional democracy. If we are to remain a constitutional democracy, we must resolve the issue regarding the timing of the general election according to the Constitution.
So the options for Sri Lanka would be 1) to reschedule the date of the general election so that the new parliament can be convened within three months of the dissolution of the Eighth Parliament. 2) to withdraw the gazette notification dissolving parliament and reconvene the Eighth Parliament. In September this Parliament would stand dissolved. The issue with option 1) of course, is that it would put the entire population at risk of contracting COVID-19 and result in an ensuing surge in infections.
Governing with accountability
The President was voted in with a strong mandate. Many may take the view that under his leadership, Sri Lanka’s response to the pandemic has been effective. The Sri Lankan Constitution derives its authority from the ‘sovereignty of the People’. This sovereignty is described as including executive power, legislative power, judicial power and fundamental rights. If Sri Lanka is to remain a constitutional democracy, these powers must be exercised by the organs to which these powers have been assigned and only to the extent that it has been assigned. The Executive must determine policy (including legislative policy) and implement laws, the Legislature must enact laws and manage the public purse and the judiciary must resolve the disputes that arise in the enactment of or the enforcement of laws.
The Quarantine and Prevention of Diseases Ordinance first passed in 1897 and last amended in 1952 and its regulations may, arguably, be adapted to our present circumstances, but it is by no means desirable. For instance, this archaic law and its regulations cannot adequately regulate contact tracing which can be carried out with new and sophisticated technology. We are at a moment in time when new methods are being used to respond to a pandemic unfolding at an unprecedented global scale. At this time, ensuring that the separation of powers is maintained is the key to 1) ensuring that the state apparatus is put to the best possible use and 2) preventing the abuse of power or authoritarian rule. The Parliament is designed to hold the Executive accountable. This is perhaps the strongest normative justification for reconvening the Eighth Parliament of Sri Lanka.
Centralized and military-led response
In Sri Lanka, the National Operation Centre for Prevention of COVID-19 Outbreak is headed by the Commander of the Army. The military’s efforts enabled the public to meet their essential needs during the curfew. In contrast with a largely self-serving political class and a public service that is often constrained by red-tape, the military is perceived to be efficient and effective (‘A constitutional solution to the impending constitutional crisis’ by Prof Jayadeva Uyangoda, Groundviews, April 30, 2020). However, the developments over the last week suggest that a military led response cannot be the way forward. As pointed out by Prof Jayadeva Uyangoda the issue is not that the armed forces have been involved but rather that they have been given the responsibility of leading the response to the pandemic.
The fact remains that the military is not a democratic institution. Their decision-making processes are not transparent to the community. The military, by design, is accountable to society only in extremely exceptional circumstances. A military led response generates a militaristic mindset in democratic institutions and debilitates democratic methods of decision making. It runs the risk of marginalizing the expertise of medical professionals who in fact should be leading our national and regional responses to this public health crisis. Contact tracing is central to the management of this pandemic. However, contact tracing raises extremely serious concerns about privacy, data collection and storage. Public institutions that are accountable are best placed to develop and operationalize these responses.
The President has a reputation for hard work and efficiency. Many place confidence in his capabilities. Nevertheless, his effectiveness too depends on being accountable and transparent in his decisions and actions. The success of any state institution, including that of the Executive Presidency, rests upon its transparency and accountability to the other branches of the state and to the public at large. Even the best individuals serve the public to the best of their capacity when they are held accountable, participate in deliberation and when they receive constructive criticism.
This exceptional moment might be our new normal. If that is indeed the case, the best expertise that Sri Lanka has to offer must be combined so that we can develop innovative and effective responses to this pandemic. In doing so, there is every reason to put to good use and strengthen, the only system of governance, with all its imperfections, that has proven to work, a constitutional democracy.