Columns

When the President of Sri Lanka pronounces weightily that a change in political power can take place only through a parliamentary process and not as a result of street protests, a delicious irony is quickly manifested.

The poisoned chalice of the Presidency

In other words, Mr Ranil Wickremesinghe’s ascent as head of State, despite being unable to retain his parliamentary seat, was precisely as a result of the protests that he now disparages. Whether this led to an actual ‘change’ in Government or not, is to quibble over words. Many would say that the same old corrupt faces remained in power, their privileges and positions intact. 

Even so, the (uncomfortable) fact of the matter is that the President’s ‘elevation’ was directly due to the upsurge of popular anger which led to former President Gotabhaya Rajapakse fleeing the shores of this land. Taken in conjunction with a peculiar constitutional quirk that is unique to Sri Lanka’s political system, the incumbent was catapulted to the most powerful position in the land.

So, much like that beloved Danish fable regarding the Emperor’s invisible clothes which required a bewildered child to point to the truth while fawning courtiers lied about how magnificent he looked, it is mystifying as to why and how such assertions are made. Or does the seat of the Presidency come with a poisoned chalice which reduces its occupants to gibbering simpletons?

Politicians safeguarding themselves

This question is asked in all seriousness, given the disasters that have befallen the country in consequence. And to the point, assertions on safeguarding the Constitution, as preached by President Wickremesinghe to newly commissioned officer cadets of the Air Force in Trincomalee this Friday, contrasts abruptly with the practice of his Presidency that is the polar opposite. This is what sticks in one’s gut, so to speak.

Perhaps, the Constitution was being safeguarded when the President proclaimed in the House that, even if there were funds to hold the local government polls, no proper date had been ‘declared’ by Sri Lanka’s Elections Commission. Lest we forget, this extraordinary claim was interspersed with unbecoming asides on the President of Sri Lanka’s Bar Association being a ‘political lawyer’ while his parliamentary colleagues, including the Prime Minister, roared in laughter.

Or perhaps, to put it more bluntly, the President and his merry men were only safeguarding themselves, rather than the Constitution, when they indulged in such unsightly histrionics. Undeniably, the perilous state of the country’s economy is a relevant factor. The Government cannot be faulted, per se, for pointing to that concern in meeting calls for elections by the Opposition. But this is not the way to do that, in crudely slapstick mode, with parliamentarians slapping their tables and applauding with gusto.

Protecting judicial oversight of executive acts

Certainly, the franchise, as much as the economy, is too serious a matter to be left to politicians. This is why, as stressed in last week’s column spaces, judicial oversight remains paramount and must be jealously protected. And again, we come to the paradoxes of the President’s utterances. Even while announcing that street protests cannot change Governments in Trincomalee, President Wickremesinghe pointed to the importance of safeguarding the judicial role in the governance process.

If so, was it proper for the first citizen of the land to have held forth, days before the Supreme Court heard petitions on the postponement of the local government elections, that the date of 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’? This question was asked last week and is reiterated, given its fundamental importance. These are not questions solely for Sri Lanka, it must be said.

Across the region, three significant rulings protecting the right to franchise in South Asia emanated from the Supreme Courts of India, Pakistan and Sri Lanka in fortuitous succession. In India, the Supreme Court directed that the country’s Chief Elections Commissioner and the other two Commissioners be appointed by the President subject to a recommendation process by a panel comprising the Prime Minister, the Leader of the Opposition (or the single largest party in the Lok Sabha) and the Chief Justice of India (CJI).

The ‘purity’ of a country’s electoral process

Immediate protests from ruling politicians ensued, saying that the Court was being ‘activist.’It was argued that the judicial ruling put an unwarranted judicial gloss on the relevant constitutional provision (Section 324 (2)), which did not specify a preceding recommendatory process. Nevertheless and in anticipation of such arguments, the Court justified its unanimous stance by citing the importance of maintaining the purity of the Indian electoral process.

The Court’s warning that otherwise, ‘it would lead to disastrous consequences,’ that ‘democracy is fragile and will collapse if lip service is paid to rule of law’ may be applied virtually wholesale to Sri Lanka. The Indian Election Commission was reminded that it must act within the constitutional framework and law and cannot act unfairly. This was all the more vital given, as judicially remarked, a party that is ‘voted into power will (not unnaturally), have a near insatiable quest to continue in the saddle.’

In fact, the decision went beyond normal constitutional rhetoric with the Court critically examining the selection process of Commissioners. The Election Commission must have an independent secretariat, rule-making powers, an independent budget, and protection from impeachment, the Court said. It must draw funds directly from the Consolidated Fund of India without being reduced to begging for funds from the Prime Minister’s Officer and the Law Ministry.

Notable developments in the region

All this is crucial because ‘a pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise which lies at the heart of democracy…perhaps offers the surest gateway to acquisition and retention of power,’ the judges reminded. The Court was responding to a public interest petition objecting to the hasty manner in which a potential Chief Elections Commissioner and other Commissioners were being selected by ruling politicians.

India’s Elections Commissioners are appointed by the President on the single say-so of the Prime Minister, which petitioners alleged was being exercised with clear bias. There was a ‘rush’ to select and promote particular candidates, civil rights advocates argued. This was unsettling as India is soon to hold several local and provincial polls with a looming national election.

As pro-democracy legal practitioners celebrated, on the same day as the Supreme Court asserted the vital nature of an independent Indian Elections Commission, a notable development was seen this side of the Palk Straits Perhaps less spectacularly that their judicial colleagues on the Indian Bench but nonetheless importantly, a Bench of the Sri Lankan Supreme Court issued an order to the Secretary to the Ministry of Finance, preventing him from withholding allocated funds in the 2023 Budget for the local government polls.

State force to control an entire citizenry, a myth

A few days ago meanwhile, Pakistan’s apex Court had directed the Elections Commission to proceed with holding elections in two provinces within the constitutionally stipulated time limits, declaring that a delay in that regard was unacceptable. In all, despite the dire state of democracy in each of these nation-states, there is yet a stubborn holding onto principles and standards of the franchise in the face of monolithic political might.

From these tender seeds may yet bloom new shoots of democratic health in each of these countries. At least where Sri Lankans are concerned, it will be a small mercy if we are spared the uncouth sight of politicians mocking the nation’s electoral process. What is sown now, will soon come to be reaped as a bitter citizenry reacts with uncontrollable anger against the political establishment.

It is a myth, much like the Emperor’s new clothes, to think that this anger can be controlled by state force.