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Saturday, July 13, 2024

Sri Lanka’s Other COVID-19 Crisis: Is Parliamentary Democracy at Risk? -Alan Keenan

The Sri Lankan government has declared its intention to rule without parliamentary oversight for the first time in the country’s modern history, potentially sparking a serious constitutional crisis. Elected in November and without a majority in parliament, President Gotabaya Rajapaksa seized his earliest opportunity to dissolve the legislature on 2 March and schedule a general election for 25 April. As the COVID-19 emergency grew serious in late March, the National Elections Commission (NEC) delayed the vote indefinitely. With the constitution stating that parliament can remain dissolved for only three months pending fresh elections, Sri Lanka will head into dangerously uncharted territory unless the president or courts take decisive action before the deadline expires on 2 June.

Serious legal anomalies quickly emerged as the government took steps to respond to the pandemic in parliament’s absence. For instance, curfews used to enforce “social distancing” are of questionable legal validity without parliamentary approval. In addition, several ad hoc emergency task forces appointed by the president (two of which are headed by his unelected brother Basil Rajapaksa and a third by the army commander) have largely ignored existing legislation for handling disasters.

More importantly, the process of setting a new election date is in constitutional and practical disarray. Although the constitution is clear about the three-month limit, the NEC decided to postpone the vote until the virus is safely controlled, meaning that the 2 June deadline would have passed. Foreseeing the constitutional dilemma ahead, the NEC had first asked the president to consult the Supreme Court for its opinion on how to proceed, but Rajapaksa refused.

Under pressure from the government to hold the election as soon as possible, the NEC chose 20 June as the new date, ignoring arguments that conditions were still not safe enough for a free and fair election with full campaigning. On 20 May, lawyers for the NEC told the Supreme Court that the election could not be held on the proposed date and that preparations for the vote would require nine to eleven weeks after health officials declare that conditions are safe. The earliest possible election date would thus fall in late July or early August.

A separate legal problem emerged at the end of April, when the government exceeded the debt ceiling established by the temporary budget that parliament approved in October last year. With the expiration of the temporary budget’s validity on 30 April, and no parliament in place to vote on a new budget, the government now has no constitutional power to borrow additional funds and, according to some legal analysts, no authority to spend any, either. Based on publicly available information, the government appears to have little if any money remaining in its treasury, making new borrowing essential.

Given the impossibility of installing a new parliament by 2 June, the easiest way to avoid a constitutional crisis would be for the president to use his powers to recall the previous parliament before the three-month time limit is reached. In such a scenario, Rajapaksa would be able to dissolve the parliament again, ideally once it had approved a short-term budget and the health situation allowed elections to be conducted safely. Since the currently dissolved parliament’s full term would not expire until 1 September, taking into account the three-month rule, an election could take place as late as the end of November.

Despite the constitution clearly saying otherwise, Rajapaksa has repeatedly claimed that he has no power to reconvene parliament and characterised the violation of the constitution’s three-month time limit as unavoidable. As for the debt situation, the president’s office has offered no clear or sound defence of its legal authority to borrow, relying on the unprecedented legal anomaly of a short-term budget prepared by the Finance Ministry after the parliament’s dissolution in March.

Sri Lanka’s Democratic Institutions Already under Pressure

The risks inherent to extra-constitutional rule are made sharper not only by Sri Lanka’s ongoing health crisis – which has precipitated two months of damaging lockdowns across the island – and the economic downturn that will likely accompany it, but also by the aggressively Sinhala nationalist, family-centred and authoritarian style of rule established during Gotabaya Rajapaksa’s first six months in office.

Since his election in November 2019, President Rajapaksa – whose brother, Mahinda, is prime minister and whose other brothers are in key positions – has given retired and active military officials an unprecedented role in governance. Some are credibly alleged to have overseen serious human rights violations during the final years of the country’s civil war (1983-2009), when Gotabaya was defence secretary and Mahinda was president. The Ministry of Defence has taken over a number of key civilian agencies and, at latest count, eighteen generals – most but not all retired – head or hold senior positions in civilian departments. A significant number of them are members of the same Gajaba army regiment in which Gotabaya served during the 1980s. The COVID-19 crisis has also seen the military granted a larger policy role than ever before, with the army commander heading the national coronavirus task force and military personnel in charge of many aspects of disease control.

The new government has also taken direct political control of the police department and actively reversed previous tentative steps toward accountability for grave crimes committed by government forces during the civil war. Within days of taking office, the president ordered a shake-up of the police Criminal Investigation Department, demoting or transferring officers in charge of high-profile investigations of political crimes committed when his brother Mahinda was in power between 2005 and 2015, and reappointing or promoting police and military intelligence personnel detained on suspicion of involvement in murders and abductions. Even as previous criminal investigations are now officially reclassified as “political victimisation” – despite significant evidence of wrongdoing presented to courts – police have arrested or questioned opposition politicians on grounds that appear politically motivated. The authorities have also targeted Muslim activists: notably, they have detained a prominent Muslim lawyer, Hejaaz Hizbullah, on terrorism charges without presenting him in court or allowing him private access to his lawyer, thus flouting even the minimal safeguards of the draconian Prevention of Terrorism Act.

The government’s authoritarian tendencies and increasingly bold disregard for the rule of law come at a time when its COVID-19 policies have taken already simmering religious tensions to dangerous heights. The government policy of mandating cremations for coronavirus victims – without medical justification and in the face of appeals by the UN and Muslim leaders inside and outside Sri Lanka to respect Muslim religious practices – has angered and frightened Muslims. Fearful of being hospitalised and forcibly cremated should they die, many are reportedly determined not to report their symptoms in case of illness. With pro-government media giving disproportionate attention to infections in Muslim neighbourhoods, and social media and online news sources full of disinformation blaming Muslims for deliberately spreading the disease, Sri Lanka’s Muslim minority is increasingly feeling under siege.

In parallel, President Rajapaksa has been actively – and successfully – cultivating the Buddhist clergy, resulting in the most senior of Sri Lanka’s Buddhist monks in late April publicly endorsing his refusal to reconvene parliament. Moves to establish a military-led task force to “protect” allegedly threatened Buddhist heritage sites in the eastern province – where state support for Sinhala settlers in the 1950s-1970s helped spark the civil war and tensions over land remain high – further indicate the deepening interpenetration of civil, military and Buddhist authorities.

The Partisan Divide over the Constitutional Impasse

On 27 April, the parliamentary opposition called on the president to reconvene the dissolved assembly. Citing the need to “work together for the common good … amid an unprecedented crisis”, it publicly committed to support government policies to fight COVID-19, to pass the needed legislation to regularise curfews and other executive health regulations since March, and to approve new government funding and an increase in the debt ceiling. The president and his top officials rejected the offer, dismissing it as part of a “narrow political agenda” designed to avoid an early election the opposition is almost certain to lose. The main opposition United National Party, already unpopular following its 2015-2019 term in government, split in two following President Rajapaksa’s decisive victory over its candidate in November 2019.

The president and ruling family are both eager to hold an election while their popularity is high, and before voters feel the worst impact of the looming economic crisis, but they are also determined to rule without parliament in the meantime. Ministers and government supporters buttress their refusal to allow the assembly to reconvene with the populist claim that the president, elected last year by a wide margin, has a stronger democratic mandate than the legislators, who were elected in January 2015.

But what is most striking about the impending crisis is how unnecessary it is. Not only are there clear constitutional provisions for handling the situation, but even from the vantage point of a government’s normal political interests the president’s Sri Lanka Podujana Peramuna party is almost guaranteed a large victory whenever the election takes place. With the opposition in disarray, the media overwhelmingly supportive of the government, and the president as popular as ever thanks to the government’s success so far in containing COVID-19 (only ten recorded deaths from just over 1,000 confirmed cases), the Rajapaksa government appears invincible.

In this context, its apparent refusal to accept the modest constraints of parliamentary oversight seems to confirm widespread fears of an executive determined to rule without meaningful checks on its power. Rajapaksa and his entourage have made clear since his election last year that one of their top priorities is to significantly strengthen presidential powers, which they argue were dangerously weakened by the 19th amendment to the constitution, adopted almost unanimously by parliament in April 2015. To amend the constitution, the government will need a two-thirds majority in parliament – hard to achieve due to the proportional nature of Sri Lanka’s voting system. But with the president’s popularity at an all-time high, his party calculates that the sooner the election is held the greater chance it has of reaching the target.

Is There a Judicial Solution to the Crisis?

With the clock ticking toward a constitutional crisis, opposition parties and civil society activists have turned to the Supreme Court. On 18 May, the court began hearing arguments in seven separate “fundamental rights” petitions calling for the parliament’s immediate reconvening and challenging the legality of the administration’s continued spending and borrowing. A number of petitioners argue that once it became clear the pandemic would make it impossible to have an election within the stipulated three months, the president’s original declaration dissolving parliament was automatically rendered null and void. According to this interpretation of the constitution, any election held after 2 June would be illegal unless parliament is first recalled and the constitutional clock reset. Lawyers for the president and his party, on the other hand, are trying to convince the court to dismiss the petitions on procedural grounds, accusing the petitioners of waiting too long to file the case and acting in bad faith, trying to avoid elections they would likely lose.

Assuming that the court decides to make a judgment on the case’s merits, the simplest scenario from a constitutional perspective would be for the judges to determine that, in light of the inability to hold the election within the allotted three months, parliament automatically comes back to life. Constitutional regularity would be restored, and the president would retain the authority to dissolve the assembly as soon as it had approved a short-term budget and done other legal housekeeping. Independence of the judiciary apart, such a verdict would, however, require significant courage from the court given the furious reaction it would likely provoke from the president. In a worst-case scenario, Rajapaksa, who is widely feared and can count on the military’s backing, could simply reject the ruling. That would mark a dangerous break from Sri Lankan political tradition: even through forty years of insurgencies, civil war, emergency rule, grave human rights abuses and numerous abuses of executive power, no government has directly defied the Supreme Court or ruled without parliament.

Also dangerous – but perhaps less likely to spark open political conflict – would be for the court to endorse some version of the “doctrine of necessity” promoted by the president’s supporters and sanction an indefinite period of exclusive executive rule in advance of a general election. Such a ruling would set a precedent in opening up legal space for executive power with no parliamentary oversight. A third, perhaps safer option for the court would be to try to split the difference, accepting on as-yet-unknown bases the legality of the president ruling without parliament, but limiting this arrangement to a specified period. With the elections commission now indicating that the earliest possible date for a vote would be late July, even this “compromise” would create a two-month gap in constitutional rule.

Finally, the slow pace of hearings suggests that the court may choose another route entirely. Despite the urgency, the judges have already spent more than a week on the preliminary step of deciding whether the petitions have strong enough grounds for the court to hear arguments leading to a judgment. It appears increasingly likely that the 2 June deadline will pass without a court ruling, leaving a constitutional breach as a fait accompli the court could have great difficulty repairing.

Any scenario that sees an election held without parliament first having been recalled and government spending and borrowing authority regularised would almost certainly provoke claims of illegitimacy, even if it had the court’s sanction. Critics would be especially vocal if the elections were held at a time when virus-related health restrictions limited the ability to campaign freely. Although immediate violent resistance is unlikely, the longer-term damage from forcing through an election on unconstitutional terms and in unsafe conditions could be considerable. Sri Lanka has suffered its worst periods of political violence precisely when the door to change through elections and non-violent protest has appeared closed – whether for Tamil youth in the 1970s or Sinhalese youth in the 1980s. It is essential to avoid the door closing again.

How External Actors Can Support Sri Lanka’s Parliamentary Traditions

The current political impasse has deep roots that are not easily amenable to outside influence, and the Rajapaksa government is particularly resistant to international advice or pressure. Among other indicators of this resistance, the government announced in February it was withdrawing co-sponsorship of the UN Human Rights Council resolution agreed to in 2015 and rejecting key elements of the UN-backed package of transitional justice measures designed to address the civil war’s legacy, saying they were a betrayal of the nation’s “war heroes”. The government has also rebuffed multiple requests from UN officials and from the Organisation of Islamic Cooperation and its member states to change its mandatory COVID-19 cremation policy and to better protect Muslims from hate speech and violence.

Despite these challenges, firm and cohesive action by Sri Lanka’s international development partners might help foster a constitutional way out of the impasse. Even before the COVID-19 outbreak, the new Rajapaksa government faced a formidable challenge in financing some $4 billion in loans coming due in 2020. The government’s need for international financial support – now even greater given the economic damage expected from the coronavirus shutdown – offers a rare point of leverage to nudge the president and ruling family onto a constitutional path.

That leverage should be even stronger now that the government has lost its legal authority to borrow additional monies. Indeed, international financial institutions and their member governments may have a fiduciary responsibility not to loan money to a government that has no legal power to borrow. They also have a moral responsibility to use their leverage to help maintain, rather than undermine, political stability and the rule of law. Helping finance extra-constitutional rule in Colombo risks sending all the wrong signals and setting a precedent not only in Sri Lanka but elsewhere, too.

For these reasons, the World Bank, Asian Development Bank, International Monetary Fund and Asian Infrastructure Investment Bank should all convey to the government that they are reviewing approval of additional loans until the gap in government authority to borrow and appropriate money is closed. Contributing governments to these institutions should make clear to the Rajapaksa administration that they will not be able to offer, or vote in favour of, further loans so long as parliament has not made this possible through a properly approved budget and an increase in the debt ceiling.

To prevent any undue economic harm to average Sri Lankans, other forms of development assistance – including urgently needed help to mitigate the impact of the coronavirus – and trade would continue unchanged. The temporary pause in international lending would not be about punishing Sri Lanka, but rather about protecting its own rules, and the integrity of international lending institutions, from being abused.

Worries that taking such action would only make Sri Lanka more dependent on China, and more likely to copy its governance style, are overblown. Sri Lanka’s economy relies too heavily on trade with the European Union and the U.S., and it values its strong military ties with Western governments, Japan and India too much, to move fully into China’s orbit. While Beijing provided a $500 million loan in March and later promised “fullest cooperation to revive Sri Lanka’s economy in the post-COVID-19 period”, Chinese assistance alone will not be enough to rescue Sri Lanka from its current debt woes.

Independent of lending policies, influential foreign actors such as the U.S., the EU, India and Japan, as well as multilateral institutions – notably the UN and the Commonwealth, for whom parliamentary and constitutional rule are core values – should press the government to recall parliament, pass the required laws and ensure to the extent possible that the election is held in a safe environment. By doing so, Sri Lanka’s international partners would be helping the country avoid an unnecessary and damaging power grab and political crisis – one that could also threaten its ability to manage the unavoidable health and economic crises it will be facing for months to come.




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