Harim Peiris

Political and Reconciliation perspectives from Sri Lanka

  • May 2020
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The fight against Covid-19 should not weaken the rule of law

Posted by harimpeiris on May 13, 2020

By Harim Peiris

(Published in Groundviews on 13th May 2020)

The Covid-19 pandemic and the resultant shutdown of social and community life has meant that the political debate and dialogue in Sri Lanka, has moved from more traditional forms of communications, to exclusively electronic and especially social media platforms. Of these, the electronic media’s reach is universal in Sri Lanka, with almost every one of Sri Lanka’s four million households either owning a TV set or having ready access to one, though not entirely being news and current affairs TV junkies. However, phone penetration in Sri Lanka is also nearly universal, our twenty million people accounting for more than twenty-one million phone connections and the resultant internet penetration through mobile devises is also likely to be quite high, at least for the use of basic data applications like Whatsapp. The effectiveness of electronic and social media exclusively for the nation’s political dialogue has been tested during the past two months and has shown some ability to communicate ideas with political traction within society.

This is unsurprising because social media provide very effective in both the 2015 and the 2019 presidential elections. In the 2015 election, the unsuccessful Mahinda Rajapakse campaign dominated every form of media space and coverage except for social media, which was the only level playing field by its very nature and which was largely supportive of the ultimately successful Maithripala Sirisena challenge to the then Rajapakse Administration. Similarly, in the run up to the 2019 presidential election, social media was dominated by sentiments supportive of the successful candidacy of the ultimate winner in that election. More recently though with Parliament dissolved on March 2nd 2020, the opposition has had to rely solely on electronic and social media and to their credit, despite the obvious and natural national pre-occupation with preventing the spread of the Covid-19 pandemic within the country, socio-political issues have been raised in the electronic and social media and effectively championed.

The most obvious and dominant issue is unsurprisingly, regarding the now dissolved parliament, the re-summoning of which, the Opposition has championed entirely via the electronic and social media. That this pressure was being felt at the highest levels, was demonstrated by the fact that the President felt obliged to do a media interview and explain his reasons for not doing so. The Prime Minister followed with his own concession in that regard, by summoning all two hundred and twenty five members of the 8th Parliament of Sri Lanka for a meeting at Temple Trees, which olive leaf was only grasped by the Tamil National Alliance, its parliamentarians coming from all parts of the North and East for the meeting and following up the same at the PM’s request with another meeting later the same day at his residence. The other political parties, including the main opposition SJB, the UNP and the JVP all boycotted the meeting.

The corollary of that issue has been the date of holding, parliamentary elections, the opposition claiming with considerable merit, that a free and fair election is not currently possible under Covid-19 preventive social distancing measures. Moreover, the period of not having a functioning legislature is exceeding the maximum period of three months and is, prima facie a violation of the Constitution of Sri Lanka. The constitutional arguments are due to be argued in the most appropriate and effective forum for the same, the Supreme Court of the Republic, with leave to proceed granted to petitioners, including Mr. Ranjith Maduma Bandara, General Secretary of the Samagi Jana Balawegaya (SJB) led by Opposition Leader, Sajith Premadasa and former Ministers Patali Champika Ranawaka and Kumara Welgama, the latter two filing a joint petition. Support for the petitions and oral arguments are scheduled to be made next week on the 18th and 19th of May. In an interesting development, in recognition of the independence of the Election Commission and its own conflict of interests, the Attorney General has informed the Supreme Court, that the AG’s Department cannot appear for the Election Commission in the said case, resulting in the Commission having to retain private counsel. This also highlights the inherent conflict of interests which arises from the Attorney General (AG) being simultaneously the chief law officer of the State and the chief legal advisor to the Government, often interpreted and practiced by AGs, as being the chief legal advisor to the executive. It is pertinent to note that during the October 2018 constitutional crisis when Speaker Karu Jayasuriya wrote to the then Attorney General seeking his views on the legality of the President’s actions in dissolving parliament before four and a half years of its five year term had been completed, that the then Attorney General declined to advise the Speaker. Similarly, it is quite likely that in Court, the Attorney General on behalf of the Head of Government and the Election Commission may take divergent positions regarding the issues.

The rule of law argument for Sri Lanka is quite simple. We are politically, a functioning if somewhat challenged democratic society. Our democratic norms and freedoms are important to who we are as a nation state. The fight against Covid-19 cannot and indeed should not be permitted to be a rationale for a weakening of our democratic norms and freedoms. The most successful fights against the spread of the Corona virus has been by democratic states and its opposite, namely authoritarianism, lack of transparency and limited government accountability, such as in China has actually exacerbated the crisis. The Sri Lankan State needs all the three arms of the state, namely the executive, the judiciary and the legislature functioning to ensure that we are a society governed by law or a civilized nation under the rule of law.  The executive arm of government, in any nation always finds being held accountable to a legislature to be somewhat of an irritant but it is a staple in any civilized society, except in absolute monarchies of which there are now, only a handful in the world.

It is rather obvious that the election to the ninth Parliament of Sri Lanka, also needs to be held in a manner that does not endanger the public health. The constitutional and legal arguments in that regard would be made and heard in the apex court of Sri Lanka next week. But Sri Lanka in its fight against the spread of Covid-19 cannot and should not weaken the rule of law and / or its democratic rights and freedoms. It is unnecessary and very unwise to do so.

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