A hurried election would only add to public misery - Former BASL President U. R. de Silva, PC | Sunday Observer

A hurried election would only add to public misery - Former BASL President U. R. de Silva, PC

9 April, 2022

Former Bar Association President and Presient’s Counsel U. R. De Silva, PC says the country would be led down a path of destruction, amplified by a Constitutional crisis if the Government and the Opposition fail to work in unison in Parliament to resolve the current crisis.

‘This is not a time to attempt to grab power or hold on to power, we must at all costs avoid a situation like in 1971, 1983 or 1989, he cautioned in an interview with the Sunday Observer last week adding that he did not support a hurried Constitutional amendment or a Presidential election, as it would only add to the public misery by delaying urgent action for economic recovery and restoration of essential services.

Following are excerpts of the interview:

Q: Angered by the shortage of essentials and economic woes, public protests have erupted countrywide since March 31. The Government is blaming the NPP and the Opposition elements for fuelling these protests. There are calls for the President to step down and send all 225 MPs home. The Parliament is currently debating a solution for this crisis without any success. What are the legal options available to overcome this impasse?

A: The Constitution provides for the President to resign on his own in a situation like this, in a letter to the Speaker he can submit his resignation. However, the Constitution does not provide for immediate presidential elections.

Following such a resignation, the Prime Minister can succeed as the President. If the sitting PM has served as President for two terms, and if his eligibility is questioned, the Speaker can take that place and serve as the President for the rest of the term. This is the first option.

The second option is, the PM or the Speaker can look after the affairs of the President’s office for a maximum period of one month, until a new President is appointed from within the Parliament. If there is more than one name proposed, the person who can show ‘majority support’ in Parliament will be elected as the President until the current term of the President expires.

But according to our Constitution a complete outsider cannot be appointed as President. The protesting people on the street are rejecting the entire 225 members in Parliament. This is the issue.

If a new President is appointed in keeping with the Constitution, the people will continue the current wave of protests. In my opinion, until the situation is stabilised the President should remain but an interim Cabinet comprising Opposition members should strive to provide immediate relief to the people and lay the groundwork for fresh elections.

Q: In Pakistan, a Supreme Court Judge was appointed as the interim Prime Minister until elections are held. Can’t we emulate this arrangement?

A: By appointing a judge to assume office of the President we would be asking him to indulge in politics. Of the three pillars of our democracy - the judiciary is separate from the other two organs -the Executive and the Legislature.

If we ask one of the judicial members to head the executive, that will be against our Constitution. That will be asking for more trouble. Appointing a Supreme Court Judge to oversee an election process is not similar to asking a judge to run the country. That is not advisable and it is not practical.

Sajith Premadasa and Anura Kumara Dissanayake can ask the Parliament to appoint one of them as the President if Gotabaya Rajapaksa resigns. If one of them could show a ‘simple majority’ within the Parliament, one can be appointed as the President, this is Constitutional. But the issue is whether people on the street will endorse that.

Q: The JVP Leader is calling for an urgent Constitutional amendment to make way for presidential elections immediately?

A: Hurried Constitutional amendments have always been a disaster. I would not endorse them. The 19th amendment is a case in point, and similarly the hurriedly done 20th amendment too was a flop. The 20th amendment was proposed to strengthen the executive Presidency, which was diluted by the 19th amendment. Should we repeat the same mistake over and over again?

Any constitutional amendment must come through the proper channel for it to be sustainable.

What they are asking is to abolish the executive presidency. From Chandrika Bandaranaike’s time there have been attempts to do so. All the successive leaders had ample opportunity to curtail the powers of the presidency. But it was not done.

The previous Government prepared a new Constitution from 2015 to 2019, it included powers to be vested with the Prime Minister, however, it did not see the light of day.

There was another attempt to bring in a new Constitution during President Chandrika Bandaranaike Kumaratunga’s time but the MPs burned the draft Constitution in Parliament.

There is common consensus that the powers of the Executive must be curtailed. The present Government is also in the process of bringing in a new Constitution but unfortunately, the prepared draft, which has been ready since January, was not presented in Parliament for discussion up to know.

We have to look into that matter as well. This is not the proper time to discuss the draft of a new Constitution. We need to address more urgent matters. We need to diffuse public anger.

We are not in a position to hold presidential or a general election, in the midst of the prevailing crisis. For starters we are in a financial crisis. Besides, an election takes time, it can’t be held next week.

The Parliament can be dissolved, the Constitution provides for that although the President cannot dissolve Parliament for four years from the last election, Members on their own motion can give notice to the President to dissolve Parliament. But after that, what will happen?

The Election Commission will be ready for an election. Yet the ground situation is not clear to have a proper election and ensure the new faces the people wish for can be elected. A hurried election will get the same old 225 back in Parliament. The politicians will say they want a new election, in their haste to ascend to power.

Q: Why do you say the ground situation is not good?

A: This is a very important question. The people on the street say, say we want the 225 MPs to go home because there are genuine people ready to enter Parliament and serve the country. How can these new faces enter Parliament, through a new political party accepted by the people. They need to finalise a manifesto. It will take time.

Until elections are through, will the people get an uninterrupted supply of electricity, will they get essential goods, who is going to provide medicine, fuel and gas supplies? Therefore, the immediate solution should be an interim arrangement to resolve the current crisis, not immediate elections.

Q: Supposing an election is to be held, the same Ministers will be in a caretaker Government?

A: There can be an inter party Government with the representatives already in Parliament. Qualified persons, who can look after the troublesome sectors, could be brought in through the national list.

I believe the national list MPs should resign on their own and allow experts to enter and give key ministries to be handled by those people.

Those people can run the Government with the President, since the President cannot be removed immediately. We are not saying that he should be there forever. We cannot forget that this Government received a huge mandate. It must be made clear if these street protestors were also among the voters that voted for this Government.

The Government must get its act together and immediately relieve the hardships faced by the people. That is priority number one. The President has given the freedom to Parliament to appoint an interim Government to come up with solutions to the present crisis. The Parliament must accept that offer.

The Opposition parties must not try to further their political ambitions - dreams of becoming the next President- at a time like this. Up to now, no Parliamentarian has said what the next step that should be taken to overcome this difficult phase. This clarity is not forthcoming.

No one can shirk their responsibility to protect the country. Amid chaos, sanity must prevail and the Government and President must make way for gradual change the people are seeking. Immediate resignation of the President is like a deliberate act of sabotage.

The tagline ‘Go Home Gota’ is a way of letting out frustration, as a responsible Head of State, President Rajapaksa must immediately address the grievances faced by the people and work towards relieving them. Appointing a new President is the next step.

Q: Are we sitting on the threshold of a Constitutional crisis, what is your take on that?

A.It will be inevitable if the situation in the country is not contained. The Constitution is very clear. It is supreme. If you violate the Constitution, there will be a crisis, calling for an immediate presidential election and the appointment of an outsider as the next President will not resolve the current issues. We need to resolve this matter sensibly; hurried solutions will be like leaping from a frying pan to the fire.

Just as elections, the Constitutional amendments take time, the Members must support it, some amendments need a simple majority in Parliament and others need two thirds. Getting a simple majority in parliament is not going to be easy in the present context. But we cannot wait long to address the urgent grievances of the people. This is the reality.

Whether you like it or not, the country is governed by the 1978 Constitution with 20 amendments. So we have to adhere to that. At the latter part of the Yahapala Government, the President and the Prime Minister were at loggerheads. Thus, the President dissolved Parliament before the due date, and this action was challenged in the Supreme Court later.

At the time, the President felt it was essential, the people were asking for that. ‘If you cannot run the country, then go’, that was the sentiment. The option was to dissolve Parliament and hold elections. But the Supreme Court upheld the Constitution which says the President must continue for four and a half years, that is the law.

To restore the essential services, a Cabinet of Ministers is essential, people may not want to see the 225 MPs continue in public office but we need to avoid a Constitutional crisis. Therefore follow the proper Constitutional procedure to find a lasting solution for the present crisis.

Q: The protestors on the street are calling for the election of a new set of legislators?

A: People can understand the present situation. If you go for elections without any changes to the system, the same old faces will be elected. That is not what the people on the street are yearning for.

To elect good people to the Parliament, a set of ethics and rules have to be established. People must know the background of the political parties and the nominated people, declarations from the candidates are essential.

There needs to be more awareness on these matters. There needs to be a ceiling for campaign expenditure. The educated and the intelligent people who wish to enter Parliament must register new parties and they need time to let people be aware of them. If not they have to purchase already registered parties, corruption begins there. The Samagi Jana Balawegaya is a case in point. This is the reason why I say, we should not go for hurried solutions.

Q: How many months do you think it will take to go for an election?

A: If Parliament is dissolved tomorrow, we need to find large sums of money to hold the election. If that hurdle can be overcome, the process will take over 5-6 weeks ….to call for nominations and so on. Still can the new Government which will also be cash strapped, deliver on the people’s demands? We must understand the crisis. Working towards toppling a Government and grabbing power is as bad as holding on to power by hook crook or by crook.

Q: Any incidents in the past where we can draw parallels to the current crisis and perhaps learn lessons from?

A: There have been no similar situations in our history, but if this is not handled property, this can go out of control and then it will be something like what we experienced in 1971 or 1983 or 1988-89 dark era. Unfortunately there are forces who are trying to turn this situation to their benefit, they might try to stage manage the public anger towards the Government and the Parliament to orchestrate violence aiming for a regime change. But the public woes will not be addressed by such acts of such people.

Innocent people will be put behind bars or suffer injury. We see young boys and girls taking part in protests, it is unsure if they really understand the meaning of these protests.

The Government has not done its duty properly: that is a fact. We don’t endorse that and we do not wish them to continue on the same path. But any change must be in keeping with the Constitution. This is very serious.

The Government has now responded to the people’s voice. These protests started in a good mood, but now it is going in the wrong direction. It is going out of control now. No one is taking any leadership. The people are being mobilised by various forces, mainly via social media, merely copying uprisings in other countries.

It started on a positive note, it sent across a firm message, and the Cabinet has resigned, opening up space for new people to come in.

The legislators must get together and calm down the people, address their most urgent needs, then after doing groundwork, the elections can be held to elect candidates of people’s choice, who can run the Parliament. Or else there will be another uprising.

Q: What is the role of the Opposition during this crisis ?

A: If the Opposition is genuine, they should not drag their feet, saying they cannot work with the Government. If they cannot work then they must nominate a set of people who can form the interim Government.

Minority parties must also join in. These parties can submit names for this interim arrangement.

If the Opposition says they brought out people on to the street to protest against the Government, then they must provide redress to the people’s grievances and explain the long and hard path to recovery where there are no shortcuts to resolve this crisis.

They should make the people on the street aware that another few months are needed to bring about a proper change. And if this interim arrangement succeeds, they can carry it forward or go their separate ways. This is what we are expecting from them as a responsible Opposition.

Up to now they have not done their duty.