Will Gota Defy The Supreme Court?

By Kumar David –MAY 27, 2020

Prof. Kumar David

A commentator in Colombo Telegraph caught my eye when he remarked on 21 May: “Today at the cabinet meeting Gotabaya Rajapaksa asserted that even if SC orders that Parliament be reconvened, he would not do so. He will use his presidential powers to veto, postpone, or reconvene and immediately suspend”. If by directly flouting a court order or by covert means Gota subverts a verdict of the Supreme Court, it would signal a political coup; not just a de facto suspension, but an actual abrogation of the Constitution. I am drawing out a hypothetical question posed by the commentator. Defying the court directly or indirectly would signal the arrival of presidential dictatorship. If the court says “reconvene parliament” and Gota refuses, or if he goes through the motions and dismisses it forthwith, the implications are the same; it is blatant flouting. Will he do it? I don’t know. I also do not know what the verdict will be and I am not commenting on proceedings. With parliament dissolved, if the judiciary is relegated to impotency then two pillars of the constitution would be dismantled. It would be a presidential dictatorship, enforced by the military. A pronouncement may follow later formally abrogating the constitution. Constitutions have been overthrown more than once in Pakistan, Thailand and in South and Central America and Africa. The Gota-Military nexus is unpredictable, so this is not farfetched. Huge numbers of military and police promotions lays the groundwork of preparing loyalty if the forces are to be moved against the people.

There is a ‘To Whom it May Concern” email authored by ANI Ekanayake (may be a pseudonym) doing the rounds with an attachment containing ten reasons why we are drifting to military dictatorship. It says, inter alia, “A large number of people voted to make Gota president. They included professionals, academics, clergy, business classes and ordinary citizens who were fed up with the corruption and incompetence of politicians. They longed for a benevolent dictator to take control and put things right. Consequently, any move by Gota to go beyond his electoral mandate, take control and assume autocratic power will be welcomed by millions who voted to make him president. He will become dictator by popular mandate. Public resistance, if any will be muted because of the cost of dissent”. This is a shrewd and valid observation.

I will go further and assert that if the Supreme Court holds against Gota, there will be greater mass support for defying the court than for abiding by the law and the constitution. I anticipate mass protests mobilised by the SLPP and its allies the LSSP, CP, MEP and DLF demanding defiance of the court. But the assumption that the SC may hold against Gota in any significant way is moot. What is certain is that the Sinhala-Buddhist public will rally behind any step, constitutional or unconstitutional, by Gota and poropaya. Politics of race and religion will continue to dominate Sri Lanka for some generations more, as it has for three generations past.

To change back to my theme, whatever the details, there are two crucial points on which the court must make a determination. (a) Will the 2 March presidential proclamation lapse on 2 June and therefore the old parliament “recalled to life”, (b) if not will court instruct the Elections Commission to conduct an election based on the current nominations in the minimum legally permissible time (35 to 50 days). If the former, Gota may dissolve parliament on the morrow. Nominations will have to be called again and elections, corona permitting, can be in late July or early August. If (b), again corona permitting, it can be two or three weeks earlier.

I have always maintained in this column that a shift of two or three months this way or that will make little difference to the outcome. The received wisdom in most quarters is that MR-GR-poropaya will easily secure a majority in excess of 120 seats, but fall short of 2/3-rds. Correspondingly, people expect the two rumps of the UNP together to secure 60 to 80 seats. I have no idea if these numbers are meaningful and have no predictions of my own. What is significant in the difference between (a) and (b) is that in case (a) fresh nominations have to be called giving the two rumps of an opportunity to fuse and seal the split. If the rumps merge it will improve UNP election prospects because of a better psychological climate for the thoroughly disheartened supporters of the UNP and its allies.

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