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The president has not been immune to negative fallout from the heavy human and economic costs of the government's strategy of head-to-head confrontation with the Liberation Tigers of Tamil Eelam, or Tamil Tigers. The president's seemingly unassailable popularity with the rural Sinhalese masses is now under challenge. But even in these straitened circumstances, the president retains a peculiar political strength through his constitutional power to dissolve Parliament at any moment he decides is opportune after the Parliament has served one year.
The present Parliament has served over two years, which enables the president to utilize his power of dissolution. There are reports that several members of the ruling party are unhappy with the current situation within the government. President Rajapaksa has given nearly every member of his ruling coalition a ministerial position, creating the largest collection of ministers in the country's history. At the same time, a large number of key ministries and departments have been retained in the president's hands or in those of his immediate family, while a substantial number of other powerful ministries have been given to those who crossed over to the government from the opposition. Many members of the ruling party are disgruntled over this, feeling unfairly deprived of the responsibilities and perks of high office.
Another cause for presidential apprehension is the recent liberal-spirited activism on the part of the Supreme Court. In recent days the Supreme Court has halted the enforced and arbitrary eviction of Tamil visitors to Colombo and also called a halt to the dubious sale of Sri Lanka Telecom shares to a foreign investor. The Court has also taken on the task of probing allegations of corruption involving government ministers.
There is the possibility of more cases involving government abuse of power coming before the Court. Two issues are important in changing the complexion of power in the country. One is the government wooing opposition members to cross over and obtain ministerial positions and perks of office. The other is the issue of the 17th Amendment and the establishment of a multi-partisan Constitutional Council that makes appointments to key offices of state.
At the present time there are about 25 members of Parliament from the opposition United National Party who have been induced to cross over to the government and have received ministerial positions that have swelled the size of the Cabinet. As government ministers they regularly vote with the government. At the same time they claim to be members of the UNP and thus retain the parliamentary seats they won at the last general election while contesting on the UNP platform. These crossovers, claims and attacks have eroded the dignity of Parliament and the moral basis of electoral representation, and are ripe for judicial intervention.
Another area where judicial intervention is necessary is with regard to a basic pillar of good governance in the country. A decade ago Parliament unanimously passed the 17th Amendment to the Constitution that sought to depoliticize key state institutions. These included the public administration, police, elections, judiciary and Human Rights Commission. The constitutional amendment envisaged that the ruling party and the major opposition parties, together and by consensus, would appoint people of high standing and national repute to independent commissions in those areas, which would stop the gross politicization of their offices.
Due to technical defects in this law, the process of appointing independent commissioners by political consensus has come to a stop, and President Rajapaksa has made his own selections, some of which are unfathomable and difficult to justify. As a result there has been serious erosion in the credibility of these public institutions.
In the coming period there will be an increased expectation that judicial activism will correct the political imbalances that are threatening to erode the moral integrity and sovereignty of the country in ever greater measure. As a national institution vested with decision making power, including that of inflicting punishment, the judiciary can be a formidable force for reform in Sri Lanka.
In ideal situations, the executive and judiciary have worked together for reform, as in the United States during the civil rights era of the 1960s that saw the elevation of the rights of the American black population. In a worst-case scenario it can lead to the type of political conflict that prevails in Pakistan, where President Pervez Musharraf sacked the chief justice and unleashed people's power on himself. Unfortunately, in Sri Lanka, the signs are that the government's course is set toward still more confrontation.
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(Dr. Jehan Perera is executive director of the National Peace Council of Sri Lanka, an independent advocacy organization. He studied economics at Harvard College and holds a doctorate in law from Harvard Law School.)
