Should Judiciary take the lead?

By N Sathiya Moorthy-December 31, 2017

If any leader or institution wants to make a difference in the New Year to the character and characteristics of the nation, and for the better, the one and possibly the only one just now should be to focus on political defections, especially of elected representatives from parliamentarians downwards. It has always been crucial to ensure the nation’s character, and of its polity and political leaders at all levels, but it is also one area where no politician or parliamentarian, leave aside President or Prime Minister, or even Provincial Councils want to make a beginning.

It is sad that not one Provincial Council, starting with the otherwise highly ‘moralistic’, TNA-controlled Northern PC, has even passed a resolution on the need for a law banning defection by elected representatives, granting that they could not pass a legislation in the matter. A PC that could pass resolutions and even Bills that seek to impinge on the constitutionally-mandated ‘unitary’ character of the Sri Lankan State, does not have the inclination to pass an ‘innocent’ resolution or ineffective Bill, on a matter that would have endeared them to the ‘silent majority’ from among their own people, and even the majority Sinhalas than their not-so-infrequent protestations over ‘power-devolution’ and re-merger.

Not just for the Tamils, the TNA and the Northern PC. An ‘anti-defection’ law should have made a core theme of the ‘yahapalayana’ dispensation, both before Elections-2015 and after the national unity government came to power. It should have made the real difference between the old and the new, not just leaderships but to the entire political scheme and culture since Independence.

If anything, an anti-defection law as a part of 19-A, passed between the presidential polls of January 2015 and the parliamentary polls that followed eight months later, in August that year, would have been the best contribution of the yahapalanaya government to the ‘reforms’ that they had promised ahead of the successful presidential poll campaign. Given that it was a ‘national government’, and the unseated Rajapaksa-centric JO too was still in its infancy and was also still recovering from the shocking defeat, such a law as a part of 19-A would have had a smooth sail.

This apart, with Parliament anyway due for early dissolution, followed by fresh elections, tactically, not many incumbent MPs of the time would have bothered too much to contest a law of the kind. Strategically, for any major party to oppose any move initiated by any section from within Parliament could have been electorally suicidal, even if to a limited extent. If nothing else, the JHU and the JVP would have had a ‘real issue’ on hand – to compel / ‘expose’ the rest of them all – a proposition that none of them would have liked, not just as a short-term election tactic but more so as a medium and long-term political strategy.

Acting defections

Today, all of it is in the past. No sub-committee of Parliament, functioning intermittently as Constitution Assembly, has even known to have considered the possibility of an anti-defection law as a part of the nation’s new statute, which was otherwise supposed to help in usher in a new political culture, as well.

This apart, the yahapalanaya mood is lost, especially to the political class. Now, every party and leader is busy talking defections, acting defections. President Maithiripala Sirisena, whose attempts to put down the Rajapaksa-centric rebellion within the shared SLFP, may have been justified, if only up to a point. Today, it is a different ball-game altogether.

If anything, the Constitution-makers should have also considered the need for propping up the self-image and public perception of the high office Sirisena was elected to hold, and expected to cleanse of all past and accumulated sins. But he is the new one in the block who has been encouraging defections, not only from within the SLFP, but also from the JVP and the PHU, too.

It is no more the dog-in-the-manger game, if at all. It has become a dog-eat-dog competition, where Sirisena is no more seen as the upright President that he was elected to be, but a leader who has seemingly forgotten his pre-poll vow not to contest another election, and with that all pretences to yahapalayana of every kind.

Less said about predecessor Mahinda Rajapaksa and Prime MinisterRanil Wickremesinghe. The former has tried and failed, but is not going to give up, now or ever. The latter has not attempted anything of the kind, not for want of trying, but only because with an uneasy coalition with President Sirisena still in place, if only to get parliamentary bills, resolutions and budgets passed, often with a two-thirds majority still, Ranil and his UNP can afford to relax for now.

However, if there is a different situation, as is being predicted this time with the arrival of the CB bonds-scam probe report, it may be a different Ranil, a different UNP, which may be at work. On paper at least, and until proved otherwise, a new, UNP-led coalition government is still possible, with the TNA, SLMC and others in this government continuing to back him.

Leave aside the immediate stability of any alternative to the incumbent combination, anything of the kind would find it difficult to sustain it, or face fresh elections without the promised power-devolution and a new Constitution, the latter incorporating the former, as there can be nothing new to a new statute without addressing the ‘national problem’. This would in turn require a two-thirds majority in Parliament, ahead of fresh polls (now due in 2020), and that would mean ‘defections’, then again, there again.

Belling the cat

If the nation agrees that defections is a bane of the polity, and none from inside even sees it as a bane to think of a cure, then the cure itself has to come from ‘outside’ of the political system. The sad part is that even the yahapalanaya mood of the nation, before and soon after the twin-polls of 2015, talked about defections as central to the nation’s problems of political corruption and corrupt politicians.

Yet, the incumbent government has had no problem in seeking external advice for fighting corruption when the cure lies within. Recent reports said that Sri Lanka now has an US advisor on the subject. It is a shame, and can end up as a sham, as well, as no one is going to talk about corruption when the stability of the government and his/her own electability at the centre. If anything, they may all end up learning more about sophistication in the place of sophistry in being corrupt and institutionalising the same, even more.

If there is anyone from within the Sri Lankan system and scheme who can do something about it, it is the higher judiciary, the Supreme Court in particular. Though lesser politicians do question court’s findings, including those on the ticklish ‘federalism’ question, at least in the under and in the new dispensation – and so with the larger JO, not many would want to be seen as crossing the sword with the Judiciary and lose their place in popular imagination, or whatever remains of them, out there.

In neighbouring India, for long, there is an anti-defection law, though ingenious political minds, often wearing the hat of the Speaker of the Legislature concerned, either national Parliament or State Assemblies, have given new and liberal or illiberal interpretations, to make a mockery of the scheme. But then from time to time, the Indian judiciary, starting with the Supreme Court, has set the record straight, and restored not only the spirit of the anti-defection law, passed through a Constitution Amendment in the Eighties when Rajiv Gandhi was Prime Minister, but also the people’s faith in the national scheme and system.

It is very much so in Sri Lanka, too, though on record some academics may still argue that the Supreme Court under the existing Constitution may not have ‘law-making powers’. Even so, there is no stopping the Apex Court if it so found the urgent need to advise the nation and the polity, Parliament and the President, to ‘behave’ themselves, and bring about laws, if they could not ‘behave’, leaving them all to decide, which way they wanted to go, and wanted to take the nation and its future generations with them.

This does not guarantee results, either in the form of a new law, or its success at implementation. But someone has to set the ball rolling. In a fits-and-starts run-up to a new Constitution, which otherwise promises nothing new, and a longer run-up to Elections-2020, no party or government may have the moral and possibly political courage to side-step any Supreme Court order, in which and into which the people put their heart and soul together. Civil society groups that talk tall on everything other than what really matters, too cannot, ignore, such a course, either!

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@gmail.com)