The Sri Lankan Supreme Court's determination on two constitutional amendments appears to have changed the political equations in the island-nation and strengthened the hands of the President. Will the United National Front government now opt for snap elections?
THE Sri Lankan Supreme Court has arrived at a decision on the proposed 18th and 19th amendments to the Constitution. A seven-member Bench considered 29 petitions before delivering a final determination, which was expected to be made public officially on October 22 when Parliament convened.
The unanimous decision was formally conveyed to President Chandrika Kumaratunga on October 15, it was learnt. As per procedure, it was simultaneously conveyed to Speaker Joseph Michael Perera. Media reports quoting authoritative sources said the 18th amendment, which sought to place the newly created Constitutional Council out of the fundamental rights jurisdiction of the Supreme Court, has been rejected as being unconstitutional. The amendment sought some form of immunity over decisions made by members of the Constitutional Council, but this was struck down.
It is the ruling on the controversial 19th amendment that seems to have delivered a stiff blow to the government. The proposed amendment sought to eliminate the presidential power to dissolve Parliament and call fresh elections one year after the previous elections. The amendment also empowered parliamentarians with "cross-voting rights" so that they could vote according to their conscience without being deprived of their seats for defying party discipline. The sections empowering MPs with cross voting rights also have been found to be unconstitutional and struck down. As for the President's power to dissolve Parliament, the Bench has ruled that apart from ensuring the support of a two-thirds majority in Parliament for it, the nation at large has to endorse it in a country-wide referendum for it to become law. There is apparently a caveat that no referendum was necessary if the present one-year period restricting the President from dissolving Parliament was extended simply to a three-year period. A two-thirds majority alone would suffice for the purpose if the 19th amendment was on those lines.
The ruling on the 19th amendment has serious ramifications for the United National Front government headed by Ranil Wickremasinghe. The move to restrict the President's right to dissolve Parliament was sought to be rationalised on the grounds that if the President chose to exercise that right after December 5, 2002, political stability would be impaired by the uncertainty of fresh polls and possibly new configurations in Parliament. The government argued that the presidential powers had to be curtailed as this would seriously affect the ongoing Oslo-facilitated peace process in which the Liberation Tigers of Tamil Eelam (LTTE) is involved. In order to accomplish this, a two-thirds majority is required. But the government does not have that, even with the support of the Tamil National Alliance MPs. The support of at least 19 Opposition MPs is needed to cobble up a majority. So the Damoclean sword of seat forfeiture for cross-voting had to be removed.
With the court's determination to disavow those provisions there are very little chances of the government being able to get the extra votes needed for a two-thirds majority even if it did decide to modify the proposed amendment in order to avoid a referendum.
Although details of the determination appeared only two weeks ago, the highly politicised nation had suspected a government "retreat" on the issue somewhat earlier. The government that was antagonistic to Chandrika Kumaratunga went "soft" a few weeks later. Economic Reforms Minister Milinda Moragoda met Chandrika Kumaratunga for "cordial" discussions. This was followed by a meeting Wickremasinghe, Marapane and Moragoda had with the President and former Foreign Minister Lakshman Kadirgamar for a briefing on the Sattahip peace summit between government representatives and the Tamil rebels. It was also announced that there would be such meetings before and after each round of talks in Thailand. All this seemed to indicate that the government was now mending fences with the President.
Why would a government, which proposed to clip the President's powers through the 19th amendment, cooperate with her at this juncture? In the public perception there was only one answer to this question. Either the government was not sure of getting the 19th amendment passed for lack of numbers, or it has made a prior assessment of the nature of the court determination. Thus the government could not afford to offend the President.
The Supreme Court seemed to have given some firm rulings that place the ball in the court of the government. The UNF government adopted a brave posture and began to get its act together. Its political committee met on October 15 and decided to go for early elections. On October 16 the Cabinet met and resolved to go for general elections instead of a referendum after the court decision was officially revealed.
More light was thrown on the government's thinking during the weekly press briefing on October 17 by Cabinet spokesperson Peiris. When quizzed by the media he declined to comment on the determination but ventured to give the opinion that, "it is for the Supreme Court to lay down the law" and that "the government has to identify political responses".
Elaborating further, he said: "We are examining all options available to us and will decide on the best course of action." While not revealing much of the government's thinking on the subject he did make pertinent observations indicating the mindset at Temple Trees, the presidential residence.
While the President could not dissolve Parliament until after one year of the last general elections, Peiris pointed out that Parliament could make such a request to the executive head. "We are therefore in a position if we so decide to bring about a dissolution of Parliament," he said. The Minister also gave a subtle hint about Parliament using "financial control" as a lever to make the President comply. "The government has every authority to determine financial policy. It determines the allocation to Ministries and departments and if necessary we will exercise that authority," he said. Responding to questions at the press briefing, Peiris said that Parliament would use its authority when facing "undemocratic" action preventing policy implementation.
THE situation is quite fluid and in politics anything could happen at short notice. Nevertheless, media reports of other developments also demonstrate that the government was heading for snap polls.
Senarath Kapukotuwa, general secretary of the United National Party, the chief constituent of the government, told the media that "we are ready to face an election at any moment. We are confident of victory. The party machinery is fully prepared to face an election." Representatives of other parties, within the government as well as those supporting it from outside, have also said that they are ready for fresh polls. What is striking about this situation is the topsy-turvy discomfiture of the UNF government on this matter. The contradictory stands adopted are quite visible.
The rationale for disempowering Kumaratunga from being able to dissolve Parliament in a year's time was allegedly to prevent an early election because such a poll would have undermined political stability and affected the peace process. It refused then to accept the President's declaration that she would not do so and went ahead with the 19th amendment.
In the aftermath of the court determination, the very same government now wants an early election before the one-year period, and in a supreme irony, expects the President to oblige. If she does not agree, the veiled threat is to cut off financial allocations to her. Moreover, the earlier arguments about a precipitate election undermining stability and the peace process are now being reversed conveniently. The new elections will not affect stability or the peace process is the new mantra. Instead it is being parroted that stability will be ensured and the peace process strengthened.
What erodes the government's credibility further is the validity of the snap poll option. Legal luminaries, such as Finance Minister N.K. Choksy, are of the opinion that if Parliament passes a resolution demanding an early election, the President has no choice but to accede to it . This assumption may be legally correct, but does not seem to be binding on the President. The President need not dissolve Parliament immediately or instantly. Given the tirades launched against her on the question of early dissolution who could fault her for not doing so now? What she could do first is to disregard the dissolution call and in a somewhat tongue-in-cheek manner advise the UNF not to go for fresh elections as it could affect stability, investor confidence and the peace process. All these were points that were raised against her. She could renew her call to "cohabit", knowing well that she holds the whip hand now. She could continue "friendly friction" with her Cabinet members and play a cat and mouse game for a while.
It is certainly the presidential prerogative to explore avenues of instituting a stable and, if necessary, alternative government. Chandrika Kumaratunga could therefore prorogue Parliament for two months and seek ways and means to cobble together a majority that would help form a new government. The prorogation would obstruct, temporarily, at least,, the UNF government's implied intention of cutting off her finances.
Against that backdrop some analysts say that what the President is likely to do would be to disregard the dissolution call, prorogue Parliament and possibly have a shot at forming an alternative government. If the attempt fails, then she too may be compelled to call for an election. But what she would like to do is to dissolve Parliament in her own time and not at a time determined by her rivals.
There is also the chance of Kumaratunga succeeding in the bold gamble of forming an alternative government. Given the dynamics governing national politics, the chances of such an eventuality are not ruled out. The country faced a presidential election on December 21, 1999; general elections on October 10, 2000; and another round of parliamentary polls on December 5, 2001. The people are tired of these successive elections. Politicians are drained out of resources and energy. The stark reality is that politicos on both sides of the divide would like to avoid another premature election. In fact the UNF government was using the reluctance factor as the crucial bait to entice Opposition MPs. Now Kumaratunga could adopt the same tactic to woo MPs from the treasury benches.
The move to pass the 19th amendment had deep implications. By getting a two-thirds majority through the cross-voting device the government wanted to alter permanently the power configuration in Parliament. A two-thirds majority is required for a constitutional amendment to set up an interim administrative council for the north-east as demanded by the LTTE. It was also necessary for future constitutional reform concerning "core issues".
With the UNF government in an unenviable position of not being able to command the requisite majority, few of the meaningful decisions reached at the peace talks could be legalised or implemented.
The Supreme Court determination has transformed the political stakes. The President is no longer vulnerable. In fact the tables are turned and her political clout has been strengthened considerably. She is in a position to bide her time and act in the best interests of the country. Even though the odds are very much against it, the UNF government has no choice other than to seek a fresh mandate for peace despite the contradictions in its stance. In any case there is no doubt that the President herself could bring about fresh elections sooner or later.
On the other hand, the President may confound her critics by complying with the UNF government's desire if and when a call for dissolution is made. She may feel confident in facing fresh polls in a situation where her position has been strengthened and she is now on the ascendant. If that happens, Sri Lanka would be going to the polls again either in late December 2002 or early January 2003.