Tuesday, 21 February 2023 06:33

Awaiting The Supreme Court’s Guidance On Elections - Jehan Perera

Jehan Perera Colombo TelegraphThe local government elections are unlikely to take place as scheduled on March 9. This is on account of the government printer declining to print ballot papers without prior payment by the Election Commission. The Election Commission is on record saying that due to this delay in the printing of ballot papers, and the difficulty of completing the postal voting on time, the elections may need to be postponed. This unexpected turn of events throws the country’s democratic process into jeopardy. It follows a government decision not to permit credit purchases by government departments. A long prevalent practice of the government printer undertaking the printing of ballot papers without payment in advance has been put into abeyance.

The problem is an absurd one as it is an internal issue between two state institutions both of which are funded by decisions of the government. It reflects the reluctance of the government to go to the polls at this time. The local government elections have come to be widely seen as a referendum on the popularity of the government and its legitimacy. The Supreme Court will be taking up the second of the two cases brought before it regarding the elections this week. It has given its decision in the first of the cases in which it stated there was no need for it to intervene as the Election Commission was vested with the power to declare the date of elections and had done so.

However, the court did not take up the second case due to defects in the petition and postponed the hearing to February 23 to enable them to be corrected. In this case the petitioner had argued that the prevailing economic situation in the country is not conducive to the holding of the local government elections. This corresponds to the position taken by government leaders that their priority is to revive the national economy and maintain political stability that is necessary for this purpose. The cost of the elections is estimated to be in the region of Rs 10 billion. The government has made provision for this sum in the national budget for the year. However, it now claims that it has no funds at its disposal to put into the elections although it has made provision for it in the budget.

Repat Protests
The government treasury has explained its predicament as arising from a government decision to prioritise five areas for the utilization of government funds. The Treasury Secretary has explained that due to the ongoing economic crisis the government has decided that funds should only be utilised for essential services. Such services have been itemised and do not include expenses for the conduct of local elections. These are the purchase of paddy from farmers, provision of nutrition to malnourished children and pregnant mothers, gratuity payments and outstanding bills from the decentralized budget programme. If expenses were to be met from outside the list of items, special approval has to be obtained. The conduct of timely elections, which forms the base of the democratic system, needs to be considered to be an essential service.

If elections are not held or if a new date is not set for the elections, there is bound to be political instability. The Bar Association has warned “the conduct of the Secretary to the Treasury, the Government Printer, and other government officials and institutions over the last few weeks clearly demonstrates a concerted effort to bring the elections to a halt, thus undermining the franchise of the people and endangering the sovereignty of the people of Sri Lanka. Such attempts to prevent elections mandated by law represent an unprecedented attack on democracy and the rule of law and pose a grave threat to the electoral process in the future. The BASL warns that such actions could set a dangerous precedent for an unpopular executive or legislature to obstruct the allocation of resources for an election and prevent the people of Sri Lanka from choosing their representatives and leaders.” 

In this context, the failure to hold the elections can provoke public protests by opposition political parties and direct action by the wider protest movement that escalates into the situation seen last year. Sri Lanka has had two negative experiences of governments having postponed elections which have come back to haunt the country. The first was the extension of the life of the parliament elected in 1970 with the government using its 2/3 majority in parliament in 1972 to put in place a new constitution that gave the government two extra years until 1977. The second was the extension of the life of parliament for five years (an entire term) through a referendum in 1982 by the government elected in 1977 with a 5/6 majority in parliament. The outcome was catastrophic for the country.

Regain Legitimacy
Elections give people an opportunity to express their support or opposition to a government and its policies. It lets the steam out of the system. A year after the referendum, the pent up frustrations of the people erupted in 1983 in massive communal riots targeting the Tamil people. This paved the way for full blown ethnic insurrection and civil war. On both these occasions, the governments that subverted the electoral process were at the height of their powers when they took those fateful decisions. The contrast with the present could not be more stark. The present government cannot be considered to be one that is based on the mandate of the people. More than anything else it needs to strengthen its legitimacy, which will best come by following the laws, including those pertaining to the democratic process, in a fair manner. 

Ever since the protest movement succeeded in forcing the resignation of the president, prime minister and cabinet of ministers last year, the legitimacy of the government has been challenged. The government’s achievement has been to reconstitute itself with a new president, prime minister and cabinet of ministers without going to the polls. It is a legal government that has followed the constitution in holding on to power. However, the government’s legitimacy is in question. Legality refers to what fits within the law. Legitimacy, however, involves following a moral and just path that is acceptable to the people at large. Delaying the elections would further erode the government’s legitimacy and not strengthen it, and signal a grave threat to democracy. Failure to do so could lead to a second coming of the protest movement which the government would find difficult to contend with.

The leadership of the present government includes those who experienced the democratic distortions of the past and the debacles that followed them. They would be aware of the powder keg situation that could confront them. The possibility of transforming this crisis into an opportunity for democratic change that involves both the government and opposition in ensuring political stability for economic recovery is primarily in the hands of the government. In this context, it is likely that the government will be looking to the Supreme Court for guidance as to the next step. The decision of the Supreme Court is likely to be pivotal in shaping the government’s response. The conduct of the local government elections would be in the national interest. The primacy of the electoral process, even if with a short postponement, needs to be upheld.