Sri Lanka stares at constitutional disaster as polls delayed

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Sri Lanka’s Supreme Court is because of rule in a key constitutional case difficult President Gotabaya Rajapaksa’s resolution to not reconvene parliament in mild of a delayed common election – a case that observers say may have lasting implications for the island nation’s democracy.

Hearings started on Monday, when six petitioners and the federal government’s counsel argued on the legality of summoning a parliament that was dissolved earlier this yr.

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At the center of the instances lies the problem of the nation’s common election, initially scheduled for April 25 after President Rajapaksa dissolved parliament on March 2.

The Election Commission later rescheduled the ballot for June 20 as a result of coronavirus pandemic and the well being dangers related to holding a ballot.

According to Article 70 of Sri Lanka’s structure [PDF], a common election have to be held and a brand new parliament summoned inside three months after the dissolution of the previous parliament.

That deadline expires on June 2, prompting the constitutional challenges by the primary opposition Samagi Jana Balawegaya (SJB) occasion and several other civil society teams.

On Thursday, President Rajapaksa’s counsel argued that it was not doable to reconvene a parliament that had already been dissolved.

“A dead parliament will not come alive,” mentioned Romesh De Silva in his arguments earlier than the court docket.

The petitioners contend {that a} clause within the structure permits for the summoning of the dissolved parliament in case of emergencies.

“[In case of an emergency the President can] summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier,” says the related clause of the structure.

Earlier within the week, the Election Commission informed the court docket that it will not be doable to carry elections by June 20, and that the fee may maintain the ballot “nine to 11 weeks after receiving the green light from the health authorities that the country is safe”.

Sri Lanka has thus far formally recorded 1,028 instances of the coronavirus, with 9 deaths, in response to authorities information, though it’s feared the numbers may very well be far increased as a result of restricted testing.

Sri Lanka election physique mulls delaying polls as a result of coronavirus

Without the oversight of parliament

Since March 2, President Rajapaksa has operated his authorities with out the oversight of parliament, and his counsel has argued that he could proceed to take action till a common election may be held and a brand new parliament convened.

“What’s going on here is effectively an executive takeover of the state,” says Asanga Welikala, a Sri Lankan constitutional skilled.

“The constitution clearly envisages that all three branches are there to deal with a national emergency [and] here the president is refusing to do that, because he wants the executive to completely dominate the situation,” he says.

“It’s a thing that goes to the very heart of democracy under the Sri Lankan constitution and to the legality of executive action.”

Sri Lanka’s system of governance shares govt authority between the president and prime minister, a publish presently occupied by Rajapaksa’s brother and former president Mahinda Rajapaksa.

Under the 19th modification to the structure, handed following a 2015 election through which the Rajapaksas had been voted out of workplace, the powers of the president had been drastically curtailed.

In November, nevertheless, Gotabaya Rajapaksa stormed to a landslide presidential election victory, promising a extra centralised type of authorities and stricter safety insurance policies in a marketing campaign that was marked by an attraction to Sinhalese Buddhist nationalism.

Since then, President Rajapaksa has appointed former navy officers to greater than a dozen key posts because the bureaucratic heads of ministries, and vested additional energy in his personal workplace and people of his brothers.

He has additionally reappointed or promoted a number of navy officers who had been beforehand going through human rights violations costs in court docket over their conduct through the almost three-decade-long civil conflict in opposition to Tamil rebels.

“I think Sri Lanka is on the verge of a qualitative change in the form of governance,” says Alan Keenan, Sri Lanka senior advisor for the International Crisis Group (ICG).

“For a country that has been an electoral democracy, if not a fair one, throughout five decades of insurgency, war, terrorism, [and] natural disaster, the one thing that has held up has been that it is a constitutional electoral democracy. That may well change.”

In addition to questions of general governance, the petitions on the Supreme Court have additionally challenged the legality of the federal government’s fiscal spending and authority to borrow funds within the absence of a parliament to offer oversight.

“For any government funding, after [the] three months, if you are doing any spending you have to obtain parliamentary approval,” mentioned Manjula Gajanayake, nationwide coordinator for Colombo-based elections watchdog the Centre for Monitoring Election Violence (CMEV).

“The executive arm is the only one that is active at the moment. That’s why we believe that there should be a parliament […] Parliament is the only arm that can check executive powers. But that arm is dissolved.”

Rajapaksa’s landslide win

In October 2018, Sri Lanka noticed one other constitutional disaster, when then-President Maithripala Sirisena tried to dismiss the federal government of then-Prime Minister Ranil Wickremesinghe. After a chronic disaster, the Supreme Court dominated in favour of PM Wickremesinghe.

Politically, Rajapaksa’s landslide win in November means that his Sri Lanka Podujana Peramuna (SLPP) occasion would win a lot of seats in any common election. There has additionally been widespread approval for his authorities’s dealing with of the coronavirus disaster thus far, with curfews swiftly imposed and official numbers of an infection low.

“They are seen to have done well to control the virus,” says the ICG’s Keenan. “Especially given the stark contrast between the competence of this government and the utter incompetence of the previous government, which was a disaster in terms of managing complicated problems.”

As such, Keenan and different analysts prompt that the federal government’s intention could be to carry a ballot rapidly to safe a two-thirds majority in parliament, one that may permit the Rajapaksa’s to amend the structure.

“In the pre-pandemic scenario it was very clear from the highest levels of government that they are totally opposed to the 19th amendment, the cutbacks on presidential power and that … they want to roll that back,” mentioned Welikala.

In the interim, nevertheless, there stays uncertainty about whether or not the federal government can proceed to rule straight, with out parliamentary oversight.

“I think their first desire would be to have an election sooner rather than later and do well in it,” says Keenan. “The question is: would they really be willing – and they seem to be – to rule in some kind of extraconstitutional way, and how long would they be willing and able to do that?”

The opposition, led by Sajith Premadasa’s SJB occasion, in the meantime, has been in disarray for the reason that November ballot, through which Rajapaksa defeated Premadasa. Premadasa stood as a candidate from the United National Party (UNP), the occasion then in command of parliament.

The aftermath of the election noticed the UNP, led by then-Prime Minister Ranil Wickremesinghe, disintegrate, with Premadasa forming the SJB as a breakaway faction that made him chief of the opposition in parliament.

“They are very weak and that’s definitely going to play into the Rajapaksas’ and the SLPP’s [hands],” mentioned Keenan.

“So maybe if Sri Lanka does head into uncharted constitutional waters, or unconstitutional waters, will the UNP and SJB and the others bury the hatchet and fight to defend certain constitutional principles?”

Hearings within the case on the Supreme Court will proceed on Tuesday.

Asad Hashim is a digital correspondent with Al Jazeera. He tweets @AsadHashim