By Dr. Ram Manikkalingam
There is a standoff between the New President and the Old Parliament. The Old Parliament wants the New President to recall it. And the New President wants to bring in a New Parliament that supports him. But both are stuck. The Old Parliament does not have the power to recall itself. It depends on the President. And the President does not have the power to hold elections. He depends on the Election Commission. And the Election Commission does not have the power to hold an election whenever it wishes. Its decision depends on the state of the coronavirus.
If the corona pandemic dissipates or even remains at the same level after the lockdown is eased on May 11, elections can be held on June 20. But if the coronavirus continues to spread or there is a spike in the numbers of those infected, the elections will have to be pushed back further.
The President blames the Old Parliament, arguing it cannot be trusted to deliver the funds, the legislation or the political support to deal with the corona crisis despite the risk to Sri Lankan lives. Meanwhile, the Old Parliament blames the New President, saying he is in an unseemly rush to hold elections so he can have a majority in parliament, despite the risk to Sri Lankan lives due to the coronavirus.
Both should understand that however much they would like to blame each other, the culprit is corona. And the real decision maker of how to deal with elections in the context of corona is not Gotabaya Rajapaksa, Mahinda Rajapaksha or Sajith Premadasa. It is Mahinda Deshapriya, Jeevan Hoole and Nalin Abeysekara. It is the latter three who will call the shots, as long as the former cannot agree.
But that still does not address the constitutional questions which the Election Commission was among the first to highlight. Who has the authority to set the date for an election, when an election is postponed? Is it the President who dissolved parliament or the Election Commission? Who has the power to spend (and borrow money — since we don’t have any) in the case of a further postponement of elections? Who is in charge of government if parliament does not meet before June 2 — three months after it was dissolved? It is on these issues that the rubber hits the road in the jostling we see between the Old Parliament and the New President. While these are all legal issues with constitutional ramifications, the answer to none of these issues is “cut and dry” as we say in Lanka.
The President dodged the question of who should decide the date of elections by passing the buck back to the Election Commission. He decided not to go to the Supreme Court on this all important question. Critics say he should have gone to the Supreme Court for an advisory opinion. Supporters say the Election Commission has usurped the President’s powers by deciding on a date for elections. By returning the decision to decide on a date to the Elections Commission, the President dodged a political controversy.
If the Supreme Court gets involved in picking dates for an election, we would make electoral timetables, quintessentially political decisions — the subject of endless legal wrangling. If the Supreme Court asks the President to pick a date, he would be damned no matter the date he picks. If he picks a date prior to June 2, his detractors would say he is in a hurry to hold elections in the midst of corona. If he picks a date after June 2, he would be accused of violating the constitution and ruling without the legitimacy of a proper parliament. So whatever one’s criticism of the President’s policies, his decision to duck the choice of an electoral date saved him, and the country, more constitutional complications.
The second constitutional challenge is dealing with the Government’s purse. It is clear in Sri Lankan law, or for that matter, in the law of almost all democracies that the power of the purse lies in the hands of the legislature, not the executive. So the opposition points to the constitutional role of parliament in overseeing the national purse. They argue there is no legislation to authorise spending (and borrowing) after April 30. And that Sri Lanka, has already, for the first time in its history, breached the legal borrowing limit authorised by parliament.
So if recalled, the Old Parliament offers to support the President in dealing with the public health emergency by passing a new “vote on account” that will facilitate borrowing and spending to deal with the corona crisis. But the Old Parliament’s offer of support has been turned down by the President. The Rajapaksas believe this argument to recall parliament has very little support among the public. Since Gotabaya Rajapaksa just won with a resounding mandate, they believe parliament is seen by many as an obstacle to the President’s efforts to get things done, including dealing with the corona crisis.
The President also has wiggle room on spending due to the provision that he can draw from the “consolidated fund” until three months after the new parliament is convened. Now with elections delayed we are in uncharted territory. But I can imagine the President’s lawyers would argue, if this came to the Supreme Court, that originally parliament was due to meet on May 14, so they should be able to spend money till August 14. And that with the delay in elections, that date can only be pushed back further, giving the President more, not less, time to draw on the consolidated fund. It is hard for me to see the Court holding against him under these circumstances. Add to this the very politically awkward position the opposition parties would be in, if it looked like they are undermining the President’s efforts to spend money in the middle of a public health emergency, even as they are calling for the very delay in elections that creates the funding blockage.
Of course, all of this would change if foreign lenders refuse to lend because of concerns regarding the legality of loans. While no court is likely to dispute the power of the President to seek foreign loans in an emergency, foreign lenders may be wary of what would happen later, once a parliament is elected and the borrowing is challenged in a court of law.
The lenders may find themselves in the unhappy position (but happy for Sri Lanka) of not being able to regain the monies lent. And this possibility may lead them to desist from lending. It is not clear that the lenders are at this point, yet. Also there is always China that maybe willing to lend at very high interest rates when compared with the IMF and the WB, should Colombo ask for the money.
So the President and the PM could take the position that if there is indeed a legal obstacle, then the international lenders would not lend. And they will tackle this problem at that point. Still the clock is ticking, both in the short and long term — the Central Bank opening up Sri Lanka to unregulated deposits temporarily and the government asking civil servants to give up a day’s income are indications of our desperate straits. Where other countries – including the US with a highly polarised Congress — are passing spending bills and giving their citizens money in these hard times, Sri Lanka is doing the opposite. Worse, in a few months, we have several billion US dollars due in interest and bond payments. With a downgrading of our credit rating, we are going to find it even harder to find the money to pay this.
So while, the President may be able to justify drawing on the consolidated fund in the next month or so, to spend money on a public emergency, he cannot sustain this manner of spending for much longer. He will have to start thinking about how he would reassure creditors that there is political stability in Sri Lanka and they can trust that we will pass spending bills to pay our dues and service our debts. This is an economic issue that can lead to a political problem for the Rajapaksas, but it is not necessarily a constitutional issue.
There is another more fundamental political/constitutional gap that is even more problematic than the funding issue. Constitutionally, parliament must meet within three months of being dissolved — June 2. But elections are currently due to be held on June 20. So there is 18 days where we are not sure if the current caretaker government can actually function as a government and what precisely its legal authority would be. So even if the President can draw on funds, there is a serious question about the legal authority of Mahinda Rajapaksa as Prime Minister as of June 2. And this constitutional vacuum in governance could continue for a few more weeks, if the Election Commission decides to delay the polls further. Can Sri Lanka really live with this possible governance vacuum — no parliament, no cabinet and no Prime Minister?
This leaves the President with two options. The first is to recall parliament to deal with the public health emergency of the coronavirus. The parliament in one sitting would authorise a spending bill, public health regulation and laws to deal with the pandemic, and confirm Mahinda Rajapaksa as the Prime Minister. The sitting can be adjourned with the power to dissolve parliament and decide on a date for elections back in the hands of the President. Indeed the President can recall Parliament, give them a day to discuss the corona crisis and pass the necessary bills (or not) and dissolve it the very next day. This would end the criticism that the President is sidelining debate or that any government or cabinet is no longer legitimate after June 2.
But why doesn’t the President take this obvious and simple route back to regularising governance? Lack of trust? Premier Mahinda Rajapaksa is worried that without a majority in parliament he may arrive in parliament as Prime Minister only to leave as leader of the Opposition. He is probably worried about how easily Prime Minister Ranil Wickremesinghe was ousted in October 2018. Secondly, his party is worried that time is not on their side in an election. The longer they wait, the weaker they get, as the country will hold them to account for the coronavirus, rather than hold the previous government to account for the bond scam. And worse the UNP and the SJB may bury their differences and unite electorally, threatening the super majority the SLPP hopes to get. Finally, they are worried that parliament, once convened, may even seek to impeach the President.
These are all scenarios that are highly unlikely in the context of a President elected on a fresh mandate. If attempted, these dubious moves would weaken, not strengthen, the already weakened opposition. In any case, if parliament picked a prime minister other than Mahinda Rajapaksa, the President can simply dissolve parliament. And if the parliament tried to impeach a President who had just been elected they would be seen as disregarding peoples’ lives in an emergency to aggrandise the trappings of power, rather than the substance of it.
To deal with these fears, the parties from the Old Parliament can sit down and negotiate a legislative agenda with the Prime Minister that is only about the corona crisis and funding. The President and the Prime Minister can begin negotiating this agenda with the Tamil National Alliance led by R. Sampanthan. By meeting with PM Rajapaksa last week, despite the other opposition parties boycotting the meeting, the TNA has demonstrated that it is ready to work with the government to create a political solution to the current tensions between the government and the opposition. The TNA can be a bridge between the two in working out a legislative agenda prior to parliament meeting. As the swing vote in parliament, they can provide the necessary assurance there will be neither a vote of no confidence against Premier Rajapaksa, nor an impeachment proceeding against President Rajapaksa. Whatever their political differences with the TNA leader, everyone accepts that he is a man of his word; he does what he says and says what he does.
Finally, if the President is still wary of recalling parliament, he has one more option. He can form a High Level Governance Council with all of the key political party leaders and some independent experts to deal with the coronavirus issue. This High Council can work out a short-term programme for dealing with the corona crisis and funding challenges, pending elections. The High Council can continue to function till elections are held and a cabinet is formed. These two options are not mutually exclusive.
(Dr. Manikkalingam teaches politics at the University of Amsterdam and directs the Dialogue Advisory Group based in Amsterdam. He previously served as an independent expert in the National Security Advisory Board following the Easter bombings, and as a board member of the Office of National Unity and Reconciliation.)