The Supreme Court Ruling: Gift Horse or Trojan Horse?

by Rajan Philips-June 7, 2020, 12:00 pm

Whether the Supreme Court’s refusal to allow the seven fundamental rights applications to proceed to a full hearing will turn out to be a gift horse or a trojan horse for the government, has nothing to do with the ruling itself. It has everything to do with what the government chooses to do, or not do, in the unfolding aftermath of the ruling. For now, the government appears to be taking the ruling in its stride. The President is busy launching one Task Force after another, including the latest one to oversee archaeological digs in the Eastern Province. Strange priorities, you might think, when the necessities of a global pandemic and the Great Economic Lockdown (as the IMF calls it) do not give even spare time for recalling parliament. Only the Prime Minister, who incidentally seems to be getting re-purposed to be a pre-19A PM in spite of being a former pre-19A President, has let out a cheer for democracy – calling the court’s refusal a victory for democracy.

For what it is worth, the ruling is being received as a gift horse by a different former Prime Minister, Ranil Wickremesinghe, and he is receiving newspaper headlines for it as well. For one who is not normally known to have ever held a significant brief for any notable client, Mr. Wickremesinghe is now all-knowing in matters of constitutional law. In a headline story in The Island (Thursday, June 4), Mr. Wickremesinghe said that he knew the Supreme Court would dismiss the FR petitions because "he had studied the legal background and precedents relevant to the matter." So, he "decided against taking legal action," apparently in concert with the TNA and the JVP. The point of it all was for the UNP leftovers to have a cheap public laugh at the half-breakaway Samagi Jana Balawegaya (SJB), who petitioned the court and lost. To its credit, the SJB had Suren Fernando, the son of Mark Fernando and the grandson of HNG Fernando, former Supreme Court Justice and Chief Justice, respectively, appear for it and make a lot more than a plausible case on its behalf.

It is pointless picking on Mr. Wickremesinghe except to make the point that in the whole news story in The Island, there was no mention of what Mr. Wickremesinghe thinks or has to say on the constitutional quandary - whether the state in Sri Lanka can go on for any indefinitely long period, without a legislature, between dissolution of parliament and general election. The most loyal opposition leader that he is, Mr. Wickremesinghe does not want to say anything critical of the government, or to suggest that President Gotabaya Rajapaksa could have spared the country the unnecessary constitutional bother by recalling the dissolved parliament for a limited time and an urgent purpose.

Politically, the government’s supporters might be jubilant after the court ruling. For them, the ruling is a gift horse in the short run. Where it might turn trojan is in the medium to long term, if the government’s task force approach does not produce the results that people are looking for – avoiding Covid-19 infection, avoid losing their jobs, wherewithal to feed families, opening of schools, and basic transportation. The court ruling is already encouraging the President to play to his strengths – enforcing discipline and efficiency in economically unproductive routine government operations; and cater to his supporters – appointing soldiers and outside professionals to task forces, and starting to establish civilizational task forces in ethnically mixed areas. But neither route will help the government to meet the people’s basic expectations. The two routes will also intensify internal power struggles among functionaries below the united summit of the Rajapaksa brothers. The unity between the brothers at the top is unbreakable. But the disunity among their supporters below them is equally unbridgeable. The biggest concern, however for the government should be that it does not have a credible lead figure on the economic front when the country and the world are facing the worst economic crisis in a hundred years.

As against these prospects, a court ruling last week against the government would have been more useful to the government in the short run – to use it as a spur to mobilize its supporters and as a weapon against those who dared the government in courts. The liberal Sinhalese, the incorrigible NGOs, and the Tamil and Muslim irritants could all have been tarred and feathered with the patriotic brush. Even the judges may not have been spared. They know only too well how their predecessors who held against governments were treated in the past: their houses were stoned; a Chief Justice was put through a committee hearing for impeachment; a District Judge who was also Secretary to the Judicial Service Commission was attacked in the vicinity of his son’s school; and his boss the then Chief Justice was actually impeached and fired from the job. The judges are spared now. God bless them.

The implications

Objectively, the court ruling might be seen as an admission of the judiciary’s legal or constitutional incompetence, if not subjective reluctance, to adjudicate between the president and the parliament, or to determine whether or not the state can function without the legislature for any indefinite period of time between dissolution and the election of a new parliament. It is not that there is some constitutional barrier to avoiding this anomaly. The President can simply recall parliament. But nobody can tell the President to do that, and that was one of the arguments against the fundamental rights petitions. Interestingly, there was no suggestion that even the President is not empowered to recall parliament if he chooses to, as he always could, and he should in the current circumstances.

The irony that is hugely lost in this whole business is that while the constitution stipulates the requirement of a referendum for the legislature to extend its elected term, there is nothing to stop the country from being without a legislature for any length of time after the dissolution of parliament if elections cannot be held for whatever reason within the stipulated three-month period. There is also a different standard for presidential succession through elections. The incumbent president will stay in office until the newly elected president assumes office regardless of time delays. Only if the newly elected president is unable to assume office, the Prime Minister, or, if the PM is unable, the Speaker will step in as President temporarily, and will be replaced by a Member of Parliament, most likely the Prime Minister, elected by parliament as the new president for a full term. The presidential-prime-ministerial alternations are inherently there in JRJ’s prototype regardless of 19A.

It gets interesting, especially in light of our current experience - if an incumbent president is unable to complete his term and a vacancy occurs prematurely. The PM or the Speaker will immediately succeed until parliament elects by vote, within a month of the vacancy occurring, one of its members to be president for the unexpired portion of the vacated term. No problem, there. But what happens if parliament is dissolved when a presidential vacancy occurs? Either the caretaker Prime Minister, or if the PM is unable, the Speaker of the dissolved parliament will step in and continue the dance, until the new parliament meets after the election, and elects one of its MPs as president.

Lo and behold, what happens if there is a pandemic, tsunami, or whatever, and parliamentary elections cannot be held, indefinitely or for a prolonged period of time? You get the drift. There is no point elaborating the answer and to keep going like the hole in the bucket rhyme. There will be a hole in the end unless Ranil Wickremesinghe chooses to explain to the country the constitutional precedents he claims to know, that might address all the unprecedented oddities of the JRJ constitution.

That said, there is a pre-JRJ precedent in Sri Lanka for the continuation of the legislature if elections cannot be held for a long period of time. That was the continuation of the second State Council that was elected in 1936 and continued without elections (there were individual byelections) for eleven years until the first parliamentary election in 1947. The long interval was because of the war, but the system worked even though Sri Lanka was still under colonial rule. I am not sure if the Donoughmore Constitution of that time even provided for such eventualities. But constitutions work and evolve more by good practices and the conventions they create, than by their textual stipulations and interpretations.

The United Kingdom has no written constitution, and it has been working quite well until recently when Prime Ministers started acting like Presidents. If those who are elected as presidents and parliamentarians to lead by abiding by the constitution, choose not to abide by it or even flout it, there is little that any constitution can do to stop it. And it would be futile to expect the courts to step in to save the constitution and protect one branch of the state from another. That is not to say that the courts should meekly or expediently fold under one arm of the state against another. Rather to say that political actors should strive to have political issues resolved democratically through the involvement of the people, and not to have them finessed by the courts.

If it is reasonable to say that the new Rajapaksa Administration has not lived up to the high expectations that were heaped on it in the euphoria of the November 2019 presidential election, it is absolutely correct to say that the opposition forces have really gotten worse after November in providing criticisms of the government and in offering reasonable alternatives to the government’s actions and inactions. The opposition is uncoordinated and, more than being leaderless, it is rudderless. It is the pathetic failures of the Sirisena-Wickremesinghe government and the manifest incapability of the current opposition that has contributed to the devaluation of parliament in the minds of many people.

Opinion pieces frequently appear in the media that say nothing positive about parliament as an institution. Instead, they project expectations on President Gotabaya Rajapaksa and even suggest that he should assume all the powers that he deems necessary to salvage this country from the messes that it has gotten into. There is no recognition that the decade long Rajapaksa administrations, in which Mr. Gotabaya Rajapaksa played very important roles, contributed heavily to the country’s current debts and difficulties.

The public has also grown amnesiac about the political project for abolishing the executive presidency that has been around from the time JRJ created the presidential system. For the last fifteen years and over three presidential and parliamentary elections, Mahinda Rajapaksa, Maithripala Sirisena and Ranil Wickremesinghe have been consistently promising to abolish the executive presidency. They are still around, but the abolishment project has disappeared from the political radar. It is the parliament that is in peril now, and none of the three worthies have anything worthwhile to offer to keep the old institution the way it was when they first entered politics.

It is not that the Rajapaksas want parliament abolished. It is only that they want a parliament where they have the majority, not just a simple majority but a two-thirds majority. In their misunderstanding of constitutional politics, a state cannot be stable without the executive presidency and without a parliament where the executive commands two-thirds majority. That is the kind of rubbish thinking which 42 years of executive presidential system has produced in Sri Lanka. It is futile, therefore, to expect the courts to reverse that thinking and the process it entails even with the boldest of rulings. And more so when the courts themselves have grown into being a part of that very system.