Government’s new strong-arm approach

In view of the CPC strike the army and the STF were deployed at the Kolonnawa and the Muthurajawela oil storage facilities on Wednesday. Many persons armed with clubs etc were seen threatening and attacking the strikers at Kolonnawa.

Last Wednesday, for the first time in living memory, the military was deployed to distribute fuel in the wake of the Ceylon Petroleum Corporation strike. My generation has seen many things in our lifetimes, civil war, terrorism, suicide bombings, World War II scale military debacles, piles of dead bodies – the whole works, and we thought we had seen it all and that in the interval between now and our death, we would not see anything that we had not seen earlier and that life would be at the very worst, seeing a repetition of what we had seen earlier. But the present government has proved us wrong. They have shown us many things that we never thought we would see in our lifetimes. A Chief Justice sacked with just a chit from the Presidential secretariat, the majority group in parliament which votes against the budget and holds separate political rallies, denied the leadership of the opposition on the basis that they are a part of one of the governing parties and other strange and new things.

It was also the first time that we had seen the military deployed to distribute fuel in the wake of a strike. We had seen the military deployed to run the passenger transport on the roads in the wake of the forced CTB strike that the JVP induced in 1989. But that was not a strike by legitimate trade unions, but a strike that was enforced by terrorists at the point of a gun. What we saw on Wednesday was however normal trade union action. This is not to say that trade unions cannot be unreasonable. We have seen some very unreasonable strikes in the past. During the Chandrika Kumaratunga government, there was a month long postal strike demanding the removal of the head of the Department. During the Rajapaksa government we have seen strikes by midwives in opposition to nurses and vice versa. Then there was that strike by university teachers in 2012 demanding that 6% of the GDP be allocated to education.

So there has been no shortage of unreasonable trade union action. However, the CPC strike last Tuesday was based on three demands – not leasing the Trincomalee oil tank farm to India, handing over the Hambantota bunkering facility to the CPC and the modernisation of the Sapugaskanda refinery. None of these were based on parochial interests which often motivate trade unions. For example, even though the 2012 university teacher’s strike was sold to the public as a demand for more money to be allocated for education, the actual reason why the university teachers engaged in the strike was to win more personal perks which included an allowance to educate children of university teachers in private schools. However there were no such hidden demands in the CPC strike last Tuesday.

It was all over a matter of policy. The CPC in particular has been watching bits and pieces of their institution being sold off over the years. The lubricants division was sold off to a private company. Some of the filling stations were sold off to the Indian Oil Company. One of their demands was that the Hambantota port bunkering facility be handed over to the CPC – which given the potential it has, was a reasonable demand especially view of the fact that the CPC has been depleted of income earning assets over the years especially under the previous UNP government of 2001-2004. The way the government met the CPC strike was to send the military in to forcibly enter the CPC premises and to take over the distributive functions. Striking workers were arrested by the police and bundled into trucks to be taken away to the hoosegow.

They were granted police bail later in the night but the arrested workers had complained to visiting opposition parliamentarians that they had been assaulted by the police and by pro-government thugs as well. There is, in fact, video footage and newspaper pictures of thugs armed with clubs chasing after workers. This strong arm approach to strikes does not come in isolation. At the same cabinet meeting that decided to approve the 99 year lease of the Hambantota port, the other important decision that was made was that all Provincial Council elections will be held on the same day. For all practical purposes, that will be a way of heading off the elections to the three PC elections in the NCP, Sabaragamuwa and the East which will stand automatically dissolved in early October this year. If these elections were held and the government either lost or came close to losing, that would have sealed their fate. A defeat at any election at any level – whether local government, provincial or national will effectively end the government’s ability to govern.

The fact that Cabinet has taken a decision that all PC elections will be held on the same day does not necessarily mean that the elections will be postponed. A cabinet decision cannot postpone a PC election – the Constitution itself will have to be changed for that. Article 154E of the Constitution states: “A Provincial Council shall, unless sooner dissolved, continue for a period of five years from the date appointed for its first meeting and the expiration of the said period of five years shall operate as a dissolution of the Council.” According to this provision, the Sabaragamuwa, North Central and eastern PCs will cease to exist after early October. Unless the Constitution is changed, there is no way that the terms of the existing councils in those three provinces can be extended.

The government has a two-thirds majority in Parliament so they can amend the Constitution. However, the sticking point is that if they try to Amend Article 154E of the constitution so as to extend the original term for which the PC was elected, there is the possibility that the Supreme Court may interpret it as an infringement of Article 3 of the Constitution, which speaks of the franchise. Article 3 is an entrenched provision on our constitution which cannot be amended without a referendum in addition to the two thirds majority in parliament. Any move that impinges in any way with the right to vote is interpreted as an infringement of Article 3 and hence necessitating a referendum. This is also why the government has not been able to abolish the executive presidency. Turning the elected president into a non-elected president will be interpreted as a impinging on Article 3 and therefore needing a referendum.

If not for this Article 3, which keeps popping up in the most inconvenient fashion, any provision relating to the president in the constitution can be amended with only a two thirds majority in parliament because none of those provisions are entrenched. Now, if the government in its eagerness to put off the impending provincial council elections seeks an interpretation from the Supreme Court that such postponement does not impinge on the franchise, that may have a knock on effect on the provisions relating to the executive presidency as well and place President Sirisena’s job in jeopardy.

According to Section 10 of the Provincial Councils Elections Act, No. 2 of 1988, once the dissolution of a provincial council takes place under Article 154E of the Constitution, the provincial Councils elections law kicks in and within a week of such dissolution, the Commissioner shall publish a notice of his intention to hold an election to such Council and call for nominations. After the nominations proceedings are over, according to Sections 20 and 22 of the Provincial Councils Elections Act, the district returning officers will fix the date of the poll. One way for the government to postpone holding the PC elections would be to suitably amend the provisions of the PC Elections Act instead of the constitution. The need of the government is avoid holding an election, not to extend the terms of the existing PCs.

The only way to extend the term of a PC is to amend the Constitution but by fiddling about a little with the PC elections law No 2 of 1988, it will be possible to postpone holding elections to a council that has been dissolved. This in fact seems to be the likelier scenario. Thus we may be in for a period when PCs stand dissolved when their five years is up in accordance with the constitution, and then there will be no provincial councils in those three provinces, just as there are no local government institutions. In fact, the government does have an excuse for putting off elections to the PCs, too, because they are planning to bring in a new Constitution, and can claim that it will make more sense to hold elections to the PCs once the constitutional reforms are in place. Thus, we will become the only nation on earth to have good governance without elections.