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What is the message that President Ranil Wickremesinghe conveys to Sri Lankans when he asserts (as he did in Kandy a few days ago) that the date of the local government elections can be ‘decided by court but you cannot save the economy by going to court even if all the judges – including the Chief Justice – are involved’?  

Parades or elections, what is more vital to democratic health?

Several highly unfortunate implications arise thereto. First, the deliberate timing of the statement is stark, just days before the country’s apex court was due to hear petitions filed by opposition politicians and polls monitors in regard to postponement of the local government polls. Amusingly enough, the Presidential assertion coincided with a ‘Janaraja’ parade (an event with colonial undertones) held in the hill capital after more than three decades.

To put the matter in context, the remark was in tandem with an extraordinary combination of state officials justifying the postponement of the polls. That was unprecedented in post-independent Sri Lanka which had hitherto stoutly asserted the holding of elections even in the midst of the raging conflict in the North and South. This time around, the Treasury claimed the lack of funds and a bankrupt public purse on the one hand.

On the other hand, the Government Printer reduced her office to a veritable caricature by pleading that ballot papers could not be printed for wildly diverse reasons, ranging from lack of financial guarantees to lack of police security. So to return to what the President said, what would have been the implications if a citizen – less august than the head of the executive – had made such an assertion on the eve of a court hearing?

Judicial oversight of executive acts

Would not such a statement have come dangerously close to contempt, tantamount to interference with the judicial process? Second, what was the purpose of this assertion in the first instance? Obviously, the courts cannot determine economic policy. That truth is self-evident, this does not need to be politically stressed, much less by the President. But the fact remains that not only ‘saving the economy’ but also the non-holding of elections, must be done ‘according to law.’

That means bold judicial scrutiny of acts affecting the franchise and their consequential striking down if found to be unconstitutional. Lest this principle be brushed aside, let us recall the manner in which the Supreme Court asserted that oversight power against Presidents at the very height of their formidable powers, not merely against retired occupants. This resulted in painstakingly developed jurisprudence, approvingly cited in Commonwealth jurisdictions.

One example is when the Bench held that the prevention of more than fifty five thousand voters in the Batticaloa and Vanni Districts from voting at Sri Lanka’s 2001 General Elections, was unconstitutional. This was by the security forces stopping voters from (‘inflitrating’) entering the ‘cleared areas’ on grounds that national security was at risk. No such ‘precautions’ had been taken for voters of the Trincomalee District, assessed as being largely (pro-government votes).

Once the right to vote is lost, it will rarely return in full

No repoll had been ordered for affected voters in Batticaloa and Vanni either. In the circumstances, the Court refused to hold that the acts of state officials under the Kumaratunga Presidency had been taken bonafide and in the public interest. It was ruled that the alleged ‘infiltration’ was not supported by evidence, that relevant documentation had been knowingly withheld from the judges and that the action was politically motivated.

The ruling (ThavaneethanvDissanayake, 2003, 1 Sri LR, 74) is important at multiple levels. Limiting this analysis to treatment of the right to vote generally, the judges refused to accept the (ipsedixit) word of state officials for the action they took in denying the franchise to voters. Instead, they called for relevant documentation and assessed the matter in the light of constitutional principles. Interestingly, the right to vote was judicially framed not only as an individual liberty but as a collective right.

In other words, if a single voter or segment of voters is/are impeded from exercising their right, this impacts on the entire citizenry as a whole. That interpretation was emphasized due to the enormous importance of safeguarding the right to vote given the injustice that ensues if that right is denied. Needless to say, such thinking assumes greater significance when the right to vote of the entire electorate is denied.

Stern lecturing not needed on responsibilities of Parliament

It stands to reason that once a dangerous precedent is set (viz; ‘we do not have funds, we cannot hold elections’) by the President no less, that same logic (or the absence thereof) will apply to Presidential elections, parliamentary elections, provincial council elections and so on. Where does this stop? Moreover, the argument of some that elections will result in further depletion of funds wasted on new local government councillors, is laughable.

If so, why do we waste public money on two hundred and twenty five representatives of the House? Again, where does this ‘logic’ stop? Next time that Government parliamentarians jeer when elections are denied, that may be borne in mind. More to the point, President Wickremesinghe heatedly proclaimed in the House on Thursday, raising a finger much like an angry principal curbing unruly students, that the responsibility rests on Parliament to ‘take the economy forward,’ not ‘elsewhere.’

But that is the exact task that has not been discharged. Sri Lanka collapsed into bankruptcy because Parliament reneged on that responsibility. The country’s miserably corrupt political establishment robbed the public purse and perverted the governance process. This is where judicial oversight becomes imperative, to ensure that politicians do not hold a nation and her people to ransom. So let us be spared stern lecturing as to where responsibilities lie, with whom or with what.

Penitence, not arrogance, is needed

Further, and this is not a reminder that ought to be made, the Executive President is not the authority to declare that elections have not been properly (‘duly’) declared by the Elections Commissions. This claim has been stoutly denied by the Commission which finds itself in an unenviable position. Indeed, it is farcical to talk of ‘constitutional reform’ when treating so-called ‘independent commissions’ with disdain.

For announcing that the Constitution is of no use if there is no country to save, is to descend to stark absurdity. That flight of fancy does not even merit a reasoned engagement. Adherence to the Rule of Law must be manifested, not the President stating that elections can be held ‘next year’ when the economic situation stabilises. Regardless, there is one facet of the President’s parliamentary ‘performance’ that one must agree with.

This is when he refers to his political opponents screaming their heads off but not offering any viable alternatives. Where is the Leader of the Opposition when the House was riven asunder this Thursday? The duty of the Opposition is to present a forceful parliamentary rebuttal to the Government when Parliament becomes a circus, not join in as jesters or hold forth in pocket rallies.

Humanitarian rescue mission for the citizenry

Further, social media activists chortling over lampooning the President, must ground themselves in hard realities. Mercilessly pilloried for the better part of his political career for reasons ranging from the bizarre to the legitimate, this is not a President who will be affected by clever cartooning. That much must be understood.

In sum, rather than exponentially increased taxes on the citizenry being cast as a ‘rescue operation’ for the country, Sri Lanka needs to be rescued from her conscienceless if not venal politicians, not limited to the Government benches.

That may well be the greatest humanitarian operation of all.