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Will President Gotabaya Rajapaksa be More Flexible Due to Mounting Legal Challenges and Relent or Continue to Remain Rigidly Intransigent?

By
D.B.S.Jeyaraj

June 20th 2020 is the D-day for Sri Lankan Parliamentary Elections. The Election Commission has fixed June 20 as the new date for the postponed election of April 25. However a question mark looms large over the holding of polls on the said date as scheduled. At least eight fundamental rights petitions have been filed in the Supreme Court challenging the holding of elections on June 20.

Among the petitioners are a civil society group of Prominent Sri Lankans led by Journalist Victor Ivan, the Centre for Policy Alternatives and its Executive Director Dr.Paikiyasothy Saravanamuttu, Samagi Jana Balavegaya General Secretary Ranjith Madduma Bandara, Jathika Hela Urumaya leader Patali Champika Ranawaka, Former Kalutara district MP Kumar Welgama and Attorney – at – law Charitha Gunaratne.

Three separate benches comprising three judges each are expected to begin hearing them next week from May 11th onwards. The first of the cases will be taken up for support by the Supreme Court on Monday May 11th . This will be the FR petition filed by Charitha Gunaratne.The bench will comprise Chief Justice Jayantha Jayasuriya, Justice Murdu Fernando and Justice Sithamparapillai Thurairajah. In an unexpected turn of events Presidents Counsel M. A. Sumanthiran is expected to appear on behalf of petitioner Gunaratne. Ex-Jaffna district MP Sumanthiran will also be appearing for the Group led by Victor Ivan when that petition is taken up by courts.

However there is every chance that after preliminary hearings the Chief Justice Jayantha Jayasuriya may list most of these FR petitions to be heard together at a later date. The Chief Justice may even appoint a full bench of five or seven Judges to hear and rule on these crucially important cases.

Even as these issues will be taken up by Courts, ground realities indicate that the situation is not yet conducive for conducting elections in a free and fair manner on June 20. Most senior staff in the Elections department as well as the district secretariats opine that it would be logistically impossible to hold successful elections by that date. Meanwhile the number of Coronavirus affected cases in Sri Lanka has rapidly escalated to 863 (at the time of writing this).

Matters are further complicated due to the spread of the virus in large numbers within the Sri Lankan Navy. Almost half the number of Civid-19 afflicted in Sri Lanka are from the Armed forces notably the Navy. When the Election Commission comprising Mahinda Deshapriya, Nalin Abeyesekera and Ratnajeevan Hoole fixed the new election date for June 20, there was some expectation that lockdown conditions would be gradually relaxed in order to provide at least five weeks of unfettered campaigning by political parties. This does not seem possible now.

The chairman of the Election Commission Mahinda Deshapriya has scheduled a series of conferences with Govt officials, political parties and other stakeholders this week from on May 11th onwards. The surmise is that the Election Commission after discussing the issue in detail with political parties would announce a fresh date for conducting elections. The new date could be in July, August or September. The possibility of staggered elections in different districts at different times is also not ruled out.The Election Commission is determined to fix a realistic date and adopt necessary procedures to conduct polls instead of being compelled to put off elections again.

What all this means is that Sri Lanka would be without a legislature for more than three months. The Constitution stipulates that Parliament dissolved on March 2nd has to meet again within three months. So the new Parliament has to meet on or before June 2. Since that is impossible due to the polls being fixed for the later date of June 20, Parliament will not be able to meet by June 2. This would amount to a Constitutional violation in terms of Constitutional Article 70 .Unless the March 2nd Gazette is rescinded or the Old Parliament re-convened for “emergency” reasons by the President.

The multi-crore rupee question that arises in this context is how President Gotabaya Rajapaksa would react if the Election date is postponed from June 20 to another date. The president so far has been firm in resisting the demand to rescind his gazette proclamation of March 2nd dissolving the earlier Parliament. He has also refused to re-convene the dissolved Parliament in an emergency situation under Article 70(7) of the Constitution. Will the President be more flexible and relent or remain rigidly intransigent?

Informed sources close to presidential circles say that the President would not re-convene the “old” Parliament under Article 70. He is adamant on that.However it is very likely that President Rajapaksa may fix a fresh date for the convening of the newly elected Parliament to meet if a new date for elections is announced by the Election Commission. The president fixing through Gazette proclamation a new date for the new Parliament to meet would be predicated only solely on the basis of the Election Commission (EC) scheduling a new date for elections.

It may be recalled that President Rajapaksa did not fix a new date for a newly elected Parliament to meet when the EC announced elections earlier for June 20. This is attributed to the fact that the President had felt the June 20 date was not a feasible one. In this instance however the President may set a date for the ‘new’Parliament to meet if the new election date is realistic.

Moreover the President is also mindful of the legal challenges being mounted. While one school of thought is propagating the view that the doctrine of necessity could be invoked to enable President Rajapaksa to rule without Parliament another school of thought linked to Prime Minister Mahinda Rajapaksa is not supportive to Governance sans a functioning legislature.

Under these circumstances , it is very probable that President Gotabaya Rajapaksa may have received legal advice that a new gazette proclamation announcing a specific date for the newly elected Parliament would negate the need for courts to take up the FR cases at this juncture. It is premature to speculate on this at this point of time. However it does seem apparent that the so called “legal eagles” who led former presidents Maithripala Sirisena and Mahinda Rajapaksa up the garden path during the time of the “October Coup” crisis of 2018 are also engaged in advising President Gotabaya Rajapaksa at this time.

What course of action would be adopted by the Judiciary in this matter remains to be seen. However it is still not too late for President Gotabaya Rajapaksa to undertake a course correction and climb down from his rigid stance voluntarily. One does not know how the Judiciary will ultimately rule on this issue although the unanimous ruling delivered by the seven judge bench headed by Former Chief Justice Nalin Perera could be a pointer.

The Election Commission provided a way out for President Rajapaksa when it requested him to seek the guidance of the Supreme Court. Gotabaya Refused. The president also reiterated that he would not re-convene the dissolved “old”Parliament at any cost. The issue has now gone to courts.

Now the President may face the prospect of being compelled to rescind his March 2nd gazette or re-convene the old Parliament due to a legal verdict. Would it not have been better for the President to have sought guidance from the Supreme Court on his own volition at the Election Commission’s request instead of facing a situation where he may be directed by the Judiciary to do so as a result of the legal challenges?

DBS Jeyaraj can be reached at dbsjeyaraj@yahoo.com

This is a Revised Version of an Article written for the DBS Jeyaraj Column in the “Daily Mirror” of May 09, 2020. It can be accessed here:

http://www.dailymirror.lk/opinion/Will-President-Gazette-a-Fresh-Date-For-Convening-a-New-Parliament-If-Elections-Are-Postponed-Ag/172-187995