Dissolved Parliament, Continued Security And Political Compromise

By Kusal Perera

There is bound to be a turn-around in political positions in the weeks to come, for sure. Not in terms of political cross-overs as such, but on political compromises, despite seemingly opposing positions on election platforms. The compromise would come with the presidential proclamation to reconvene the now technically absent parliament. The dissolved Sri Lankan parliament has been reconvened on a constitutional provision on March 9 by the President, one month after dissolution to elect a new parliament on April 8.

In effect, it means a large number of candidates who are now running their election campaigns and some of those listed as nominees in the National Lists of different political parties, would sit once again as members of the previously elected parliament in 2004 April. They would henceforth contest for the new parliament at this forthcoming elections as sitting MPs and not as mere candidates, we are familiar with at elections.

Once convened, this unique brand of MPs could continue as MPs according to Article 155 (4) (i) of the Constitution which says with no ambiguity that (quote) The parliament so summoned shall be kept in session until the expiry, or revocation of such or any further Proclamation or until the conclusion of the General Election whichever event occurs earlier (unquote). This nevertheless is called “people’s democracy”.

A few days before the re-convening of the now dissolved parliament, 17 former opposition MPs now turned ordinary citizens, petitioned the Supreme Court to plead their fundamental right to safe life has been threatened, with the removal of security provided to them when they were MPs before dissolution of parliament. To retain the privilege of going about with armed security for them, is a fundamental right.

That again is “democracy” in this country, though there is no legal provision what so ever for Members of Parliament to have special security. Provision of armed security for MPs was a special privilege afforded to them on the basis, their lives were being threatened, first by the 1987 – 90 JVP insurgency in the majority Sinhala areas of this country and thereafter by the LTTE instigated “terrorist” war that looked for important politicians to go for a kill. It was thus a security measure within the extensive countrywide security measures adopted by the government of J.R. Jayewardene to allow MPs to go about their duties. That continued through the rules of Presidents Premadasa, Wijetunge, Chandrika Kumaratunga and for now, President Rajapaksa.

Yet, there can be no legal provision for ex-MPs to have such security, on the assumption they were MPs before. The argument that was brought forth with the FR petition therefore was that they still have threats to their lives as before, although they are no more MPs. Implication is also that these threats are not those that an ordinary citizen would experience and could be addressed under normal law. Hence the need to have continued special armed security as that of an elected MP.

This spells out the thinking of elected people’s representatives of this democratic society. The MPs are now in a mindset that makes them important only when surrounded by security personnel. This ‘power cult’ evolved quite fast from around 1987 when the JVP went on a killing spree and the LTTE took over in a more brutal manner. Within that context of savage terror and brutal killing by non state actors, security for MPs and provincial councillors came to be accepted as a silent necessity by society. This armed security was taken for granted by the people with even the most vociferous “Left” opponents of the JRJ government  having to rely on security by the state. Thus none questioned the rational for such blanket provision of security to all and sundry.

Over 20 years for now, the MPs have found that armed security provides them with an alienated status from the voter. A citizen can only vote now, but cannot question the elected representative, as before. The security personnel provided have thus turned into a political presence in the daily life of most MPs. They the MPs have thus taken provision of state security as their unquestionable, indispensable privilege, beyond legal arguments.

It is now a camouflaged, potent force that has created a new power culture and within that power culture, there is now a strong political compromise between re-convening of parliament and the demand for security by these former opposition MPs. All of it, within the political context of emergency rule, until the new parliament decides what this Rajapaksa regime would want in terms of “power” to rule absolutely.

The compromise comes in the wake of emergency rule lapsing and the President allowed to extend same, for just 14 days and finishing off without a parliament to ratify the Presidential proclamation made under Article 155 (3) that has to be read with Article 155 (6) which is, (quote) Where such provisions as are referred to in paragraph (3) of this Article, of any law relating to public security, have been brought into operation by the making of a Proclamation under such law, such Proclamation shall expire after a period of 14 days from the date on which such provisions shall have come into operation, unless such Proclamation is approved by a resolution of Parliament (unquote).

As of this day, the parliament that sat for the last time in January to extend emergency regulations could only extend it for one month. Emergency regulations had to therefore lapse on February 28, if the President by proclamation did not extend same for another fortnight. That too comes to an end on midnight of March 14, in the midst of an election, where there is no elected parliament and therefore no MPs.

This had to be resolved in favour of the regime, to continue with emergency rule for a few reasons. As for now, the Rajapaksa regime has at least two major reasons to continue with emergency rule that has nothing to do with the security threats if any, the opposition MPs are appealing on, to the Supreme Court.

First is the crackdown on the defeated presidential candidate Gen. Fonseka. They need emergency laws to continue with the crackdown that includes detention of numerous persons. The Gen. Fonseka issue cannot be continued, unless emergency regulations provide for arrests and detentions for investigations, the way they happen. Two, the power beyond normal law to run through election campaigning, with state power, comes with emergency rule. If not the second, the first is an issue the Rajapaksa regime would not be able to handle without emergency rule.

All of it could now be resolved under Article, 155 (4) (i) which says,  (quote) Upon the making of such a Proclamation, the occasion thereof shall, subject to the other provisions of this Article, be forthwith communicated to Parliament and, accordingly —
if such Proclamation is issued after the dissolution of Parliament such Proclamation shall operate as a summoning of Parliament to meet on the tenth day after such Proclamation, unless the Proclamation; appoints an earlier date for the meeting which shall not be less than three days from the date of the Proclamation and the Parliament so summoned shall be kept in session until the expiry, or revocation of such or any further Proclamation or until the conclusion of the General Election whichever event occurs earlier and shall thereupon stand dissolved (unquote).

Once parliament sits on March 9, none of these former opposition MPs who went to the SC would now be able to oppose the proclamation and would certainly say “Yes” to extend emergency regulations until the day after the elections on April 8. This regime knows quite well that the opposition, uncertain as they are on how to respond to the reconvening of parliament, would nevertheless attend its sessions. This is an opposition that refused to accept the presidential election results that declared Rajapaksa the winner, but accepts Rajapaksa as elected President to discuss about the arrest of Gen. Fonseka and to publicly petition for his release.

This naivete of the opposition understood, the Rajapaksa regime would be content to have them attend the reconvened sessions for the UNP to oppose and the JVP to slip out in silence as they have been doing, since they decided not to vote for emergency rule. The fact remains, the opposition knows the emergency would be extended with a majority and that would qualify its claim for continued security. Its their reason to comply with the reconvening of the now dissolved parliament. The opposition would not therefore call it “undemocratic”, even in a lighter vein, on their election platforms.

These former opposition MPs would therefore allow for the extension of emergency rule, knowing very well that their own presidential candidate would be adversely effected by such extension of emergency rule. Knowing quite well that emergency rule does not leave space for a free and fair election in a culture, within which the government would use state resources and powers to the best advantage of their own candidates. Such is the compromise on democracy between the President the opposition refused to accept was democratically elected and the opposition itself.

This also brings out the true essence of the present constitution and its democratic content. This  1978 Constitution allows political power to be accrued with elected representatives, distancing them from the voter. It allows executive power to circumvent democracy and the power accrued with MPs provides them with excuses to compromise with the government to live with unduly accrued power, all of them are comfortable with.

All constitutions are drafted for a political purpose, as decided by those in possession of political power. This was designed by J.R. Jayewardene for the express necessity to have unquestioned power for the Executive and the Legislature.

While in the opposition in early 1970s in a public discourse on the first Republican Constitution of 1972, JRJ was quoted as saying, a Constitution should not bind the Executive and the Legislature too much on local electoral issues through elected representation. His argument was that, such binding prevents MPs from thinking and acting nationally, a reason he attributed to Sri Lanka’s inability to develop itself like Singapore. His idea of a president and a parliament therefore was, institutes independent of voter pressure. The 1978 Constitution of JRJ thus achieved this alienation in every way, though without development.

All of it brings to the surface a new issue of democratising the constitution that would not only hold the president answerable to parliament, but a parliament that honours sovereignty of the people. A parliament that would only have legislative power while an elected body and not otherwise. In plain language, constitutions do not necessarily provide for democracy in a society. With such constitutions, democracy often begins and ends as a procedural factor with no functional meaning.

Thus the use of constitutional provisions for furthering of arrogant, unquestionable power for elected representatives, whether they sit on the “left” or the “right” of the Speaker, would prove Oscar Wilde a better genius than he was. Sri Lanka would go its way bludgeoning the people, with their own consent.