The complex world of Sri Lankan politics took another dramatic turn last week with speculation that President Maithripala Sirisena was considering conducting a ‘non-binding’ referendum on the question of conducting a general election before the presidential election.
The presidential election is due to be held by December 7, 2019, the National Elections Commission has announced already. A general election can be held only after Parliament is dissolved and that cannot occur earlier than March 1, 2020 by which time a newly elected President would be in office.
The latter is because of the 19th Amendment to the Constitution which took away the power of the President to dissolve Parliament arbitrarily. The 19th Amendment declared that, “the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of members”.
It will be recalled that during the Constitutional crisis in October last year, President Sirisena did dissolve Parliament. On the occasion, the matter was canvassed in the Supreme Court by the political parties in the Opposition and the Supreme Court held in its favour, declaring that the dissolution was unconstitutional, forcing President Sirisena to reconvene Parliament and reappoint Ranil Wickremesinghe as Prime Minister.
Because of these constitutional barriers, any referendum would be ‘non-binding’. Even if there is an overwhelming public mandate to dissolve Parliament, the Constitution does not allow for that unless Parliament itself resolves to do so with a two thirds majority. That is extremely unlikely, if not impossible, given the composition of the current Parliament.
Presidential election
Presently, the United National Front (UNF) is the single largest party in Parliament and it strongly opposes a general election being held first. That is because it feels that it would be advantageous to be in government when the presidential election is conducted, even if President Sirisena remains President. Without the UNF’s support, the two-thirds support required to dissolve Parliament will not materialise.
What then is the rationale of seeking a referendum that would be non-binding? Clearly President Sirisena has given several indications that he wishes to remain in office as long as the Constitution would allow him to do so.
Previously President Sirisena had sought the opinion of the Supreme Court as to whether his term of office was six years or five years. It had been suggested that it could be six years because, at the time of his election to office on January 8, 2015, he was elected for a period of six years. The 19th Amendment, which curtailed the President’s tenure from six years to five years, was enacted several months later, in May 2015.
It was on that basis that this matter was referred to the Supreme Court. When the matter was canvassed before the Supreme Court, then Attorney General (and now Chief Justice) Jayantha Jayasuriya appeared for the President and made submissions to the effect that the President’s term was six years because the 19th Amendment was not intended to be retrospective. However, the Supreme Court held otherwise and ruled that the President’s tenure was indeed five years.
There has also been speculation that the President was also seeking to clarify when his term ends. That is because the 19th Amendment was certified into law only on May 15, 2015. It could be argued that, even if it had no retrospective effect, since the Amendment was certified only in May 15, 2015, President Sirisena was entitled to remain in office for five years from that date- until May 14, 2020.
There had been suggestions that this question too would be put to the Supreme Court and in fact, Sri Lanka Freedom Party (SLFP) General Secretary Dayasiri Jayasekara once told the media that this was being considered. However, that has not materialised to date. Hence the new speculation about a ‘non-binding’ referendum.
Common strategy
It appears that the rationale for a ‘non-binding’ referendum is that it would put pressure not only on the UNF to support a general election but also on the Sri Lanka Podujana Peramuna (SLPP) to support President Sirisena. The SLPP, the de facto leader of which is Opposition Leader Mahinda Rajapaksa, is in talks with the SLFP about forging a common strategy for the upcoming national elections but has publicly strongly denounced the plans for a referendum.
“There are reports that the President is planning to call for a referendum. We don’t need a lamp and pot referendum like the one conducted by late President J. R. Jayewardene. It will be a waste of public funds. Instead, we should hold the presidential election,” SLPP Chairman G. L. Peiris told the media this week.
However, SLFP General Secretary Jayasekara responded saying that nominating President Sirisena as a ‘common’ candidate of both the SLFP and the SLPP would be the only way to win the election. “I don’t understand why the JO members are now agitating for a presidential election when they were earlier campaigning for a general election first,” Jayasekara said.
In his media conference, Jayasekara was also critical of the Rajapaksa family and the comments he made are not likely to endear him to the SLPP or help SLFP-SLPP negotiations. “Who can guarantee that if Gotabaya Rajapaksa won the presidency the Cabinet and Parliament will not be filled with Rajapaksas? Under Gotabaya, except for Mahinda, all other Rajapaksas such as Chamal, Basil, Namal, Shashindra and even Nirupama will get Cabinet posts. Who wants such a scenario?,” Jayasekara asked.
The SLPP however has not veered in its stance of seeking its own candidate for the presidential election. Though no official announcement has been made yet, former Defence Secretary Gotabaya Rajapaksa remains the frontrunner among SLPP stalwarts to run for the Presidency.
The Easter Sunday bomb attacks, albeit inadvertently, raised Gotabaya Rajapaksa’s profile and standing because comparisons between his tenure as Defence Secretary and present-day officials became inevitable in the aftermath of the disaster. Even Field Marshal Sarath Fonseka acknowledged that the country’s security establishment functioned far more efficiently when Rajapaksa was in charge of the Defence Ministry.
However, in recent weeks, Rajapaksa has had bad news to deal with as well. He reportedly had a health scare and had to undergo urgent medical treatment. This week, The Court of Appeal dismissed Rajapaksa’s application challenging the orders made by the Permanent High Court which is hearing the case where Rajapaksa is charged with allegedly misusing state property in the construction of the D. A. Rajapaksa Museum.
Nevertheless, the SLPP believes that in the dynamic political scenario that evolved after the Easter Sunday attacks, it stands to make gains overall. There was concern among some in the SLPP that the party may have alienated the Muslim community by the hard-line approach taken by some of its members in the immediate aftermath of the bombings.
However, most SLPP stalwarts believe that sentiment in the majority community has swung decisively towards the SLPP following the attack and that this would get the party beyond the fifty per cent mark required at the presidential election. This is what occurred after the war victory in 2010 when Mahinda Rajapaksa won the presidential election with an overwhelming mandate but essentially without the votes of the minority communities, they argue.
Historically in Sri Lanka, over the past forty years incumbent Presidents have called for presidential elections before the parliamentary elections. That is with the intention of winning the presidential election and then use that advantage as a ‘snow-balling’ effect to secure a comfortable majority for the President’s party at the subsequent general election, which then makes the task of governance easier for the President.
Constitutional provisions
The only exception to this came in August 1994 when then President D. B. Wijetunge called the general elections first. That gamble backfired because Chandrika Kumaratunga swept to power and was appointed Prime Minister, a platform she used effectively to campaign for and win the subsequent presidential election in November 1994.
Therefore, in the current political scenario, while the President certainly has the authority to call for a referendum on dissolving Parliament, any verdict the public delivers on that question will not supersede the provisions of the Constitution. As such, the very purpose of the referendum is being questioned, especially because it will come at a tremendous cost to the country when it can ill afford it.
From the perspective of President Sirisena who is reportedly considering the idea, the best option would be to enter into a working arrangement with the SLPP. If it is the SLFP’s argument that the SLPP, going on its own steam, cannot win the presidential election, the same will apply with even more severity to the SLFP because the party came a distant third in the last national elections- the local government elections conducted in February 2018.
It is a well-worn cliché that politics is the art of the possible. In what has been an increasingly tumultuous years for Sri Lanka, it appears politicians of all persuasions are trying not only anything and everything that is possible to try and win the presidential elections that are due in the next few months, they are also trying a few impossible strategies as well.
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