Sri Lankans know their cricket a lot more than their Constitution. Imagine a Test match, where the team batting first scores over 500 runs for the loss of six wickets and the captain declares the innings closed. The second team won’t just give up – they bat spiritedly, avoid the follow-on and score almost as many runs as the first team but get all out.

Now imagine the captain of the first team saying that because he declared his side’s first innings at six wickets down, he should be allowed to complete the first innings and only then start the second innings.

The captain goes straight to the Match Referee who rules that the first team could play the first innings but only till they lose two more wickets and not till they are all out. The second innings could commence after that. The opposition team, the umpires, the independent media and the discerning spectators are asking, why? Because the Constitution says so!

What will you say? Forget the Constitution. This is not cricket. In fact, it gets worse.

Setting aside the People’s Verdict

President Rajapakse called a premature election four years into his first term rather than waiting out the full six years. Having won the election by a convincing majority, he has opted to complete his first term and then start the second term. Just to show that he is playing by the book and not making up rules as he goes along, he got the Supreme Court to tell him what to do. The Court said that he can start his second term not in November 2011, but in November 2010. Almost one year after his reelection, but not the two years that the President’s entourage would have preferred.

Has the Court been too harsh on the President in not letting him complete the unused two years of his first term? Is he disappointed with the ruling? These are wrong questions. Has the people’s verdict on January 26 been set aside for ten politically pregnant months? That is the pertinent question, and, ‘yes, it has been’, is the answer. It is a political question more than a constitutional or legal question.

In his own imperious way, J.R. Jayewardene crafted the current constitution in two parts, one for himself, and one for everyone else. But everyone else – notably Chandrika Kumaratunga and Mahinda Rajapakse – has been using and abusing JR’s for-himself provisions for her or his own purposes. President Kumaratunga blatantly abused the constitution to call the 2004 parliamentary election just for her personal heck of it and when there was no justifiable reason for it. She tried to use the transitional provisions to extend her tenure in 2005, but the Supreme Court wouldn’t give her a day beyond the second six year term. The Court forced her to sacrifice the unused one year of her first term when she went for reelection one year too early. It was the right decision, but for wrong reasons.

Now we have the wrong decision for mistakenly right reasons. The patent absurdity of the Third Amendment relating to the reelection and transition of an incumbent president from her or his first term to the second term has been unexceptionably explained by Nihal Jayawickrema. The Third Amendment of JR, by JR, and for JR flies in the face of electoral democracy. It undermines the fundamental condition of fairness in allowing the incumbent to call an election any time after four years. It goes further and sets different timetables for the new term depending on who wins – if the incumbent wins he will have 6+x years, if the challenger wins he will have 6+0 years. And the legal eagles are eager to get stuck in their interpretive chambers figuring out what that ’ shall be. Some election, some democracy!

Letting the Opposition protest till November

That every action has an equal and opposite reaction is Newtonian mechanics. In politics, especially in Sri Lanka, every action precipitates an unintended consequence. By delaying the swearing in till November, President Rajapakse has inadvertently given the Opposition more time and space to challenge the outcome of the January election. Had he taken the oath on the politically auspicious Independence Day - Fourth February, sticking to the idiosyncratically symbolic intent of JR’s Third Amendment rather than its ill-drafted text, the President re-elect would have made the January election result a fait accompli and rendered Opposition protests a futile exercise in frustration.

The Opposition now has time till November to keep its challenge alive and kicking. One would think there are enough smarts in the Opposition ranks to pick apart the seemingly unassailable 1.8 million majority votes and challenge the parts of its sum right across the country and in the courts. For although apparently impregnable at the national aggregate level, allegations of fraud and malpractice can be made palpable, even if not ultimately provable, by disaggregating the 1.8 million margin over 22 districts, 160 polling divisions, and 11,000 polling stations.

Substantively or vexatiously, the Opposition could make much out of the pattern of lower votes polled by their common candidate in every district (except Jaffna and Vanni) and a majority of the 160 electorates in comparison to the votes that Ranil Wickremesinghe had garnered in 2005. It is this consistent drop in votes that appears to be the basis for the Opposition’s rejection of the results. If the drop in votes was orchestrated as the Opposition seems to be alleging, it could not have happened at the level of voting or counting, but only during the finalization of the vote tally sheets and summary sheets at the counting centres. The allegation of computer fraud would appear to be consistent with this scenario as independent computer assistance may have been required to orchestrate such a widespread operation. Needless to say, public agencies like the Colombo University Computer Centre and the Department of Elections could not have been part any such operation.

I am not suggesting for a moment that any or all of this happened on election night, but the Opposition now has the opportunity to persist in making any and all such allegations till November. When the war against the LTTE was over, allegations of war crimes became the hangover. Now, even after scoring a resounding electoral victory, the Rajapakse government has to deal with allegations of electoral fraud and malpractices within and outside the country.

Delaying the swearing-in till November is not the only blunder of the government. The sledge-hammer approach it took during the election and after the election seems utterly unnecessary given the margin of victory and it is counterproductive to the need to restore normalcy and stability. Speaking at the Independence Day celebrations the President re-elect has emphasized the need for national reconciliation involving the Sinhalese, Tamils and Muslims in the aftermath of the war. Soon he may have to strive for reconciliation among the Sinhalese themselves in the wake of the presidential election and the divisions it has created among them.

In mature democracies, the contestants accept the people’s verdict and move on to the tasks of governance and providing responsible opposition. In normal times, a good majority victory would humble both the winner and the loser for different but positively reinforcing reasons. In Sri Lanka, every presidential election has become more autocratic than democratic, more confrontational than cooperative and more destructive than constructive. It could have been different this time, but the post-elections prospects are not pleasing.