Photo credit AP Photo/Eranga Jayawardena via The Diplomat

The postponement of the General Elections 2020 due to the Covid 19 pandemic has led to different viewpoints being expressed on the legal position. The focus is on two issues – the date of the General Election and the summoning of Parliament.

Professor GL Pieris, and Mr. Manohara de Silva PC, in interviews published in newspapers or TV programmes, have stated that the President is not required to re-summon the old Parliament, after his Proclamation of Dissolution on 2 March, even when the dates set for the General Elections (25 April) and the summoning of the new Parliament (14 May) must be changed because of the COVID 19 pandemic. They argue that the President has fulfilled his duties under the Constitution   by issuing his Proclamation dissolving the old Parliament in conformity with Article 70 (5).

They say that the Election Commission (EC) has to take over, and must conduct the polls for the General Elections, at any time they consider possible, with due consideration given to the circumstances of the COVID 19 pandemic.

Both these jurists (neethi visharada) have also expressed the view that Article 70 (7) of the Constitution gives an open-ended discretion to re-summon the old Parliament, in the event of “an emergency.” They say that the President need not exercise this power in response to the COVID 19 pandemic. Prof Pieris argues further, that since a   “State of Emergency” on grounds of public security has not been declared by the President, and need not be declared because of the pandemic, his powers under Article 70 (7) are not relevant.

There are several problems with this analysis.

1)        The declaration of a “state of emergency” is a procedure dealt with by the Constitution’s provisions in Chapter XVIII on “Public Security,” the Public Security Ordinance, and regulations passed under that Act. Article 155 (4) (i) of the Constitution, in this Chapter, states that when a Presidential Proclamation on a state of emergency is issued for reasons of public security after the dissolution of Parliament, the Proclamation itself operates as a summoning of the (old) Parliament. The re-summoned Parliament remains in session until it is dissolved by the expiry or revocation of the relevant Proclamation on the state of emergency, or the holding of the General Elections.

Professor Pieris describes the above procedure regulating a “state of emergency” in the context of a public security crisis, and suggests that it is this type of  “emergency” that is referred to in Article 70 (7).

It seems clear that Article 70 (7) of the Constitution refers to a SEPARATE AND DIFFERENT   procedure, relating to an ordinary emergency (hadisi thathvaya) that occurs after dissolution of Parliament. This Article is set out in Chapter XI of the Constitution on the topic of Procedures and Powers of Parliament.  The Chapter itself deals with the general subject of the relationship between the President and Parliament under the Constitution. Article 70 (5) therefore deals with the specific matter of SETTING the dates for the dissolution of Parliament, and the SUMMONING of a new Parliament. Article 70 (7) follows, and deals with the emergency situation.

The Presidential power given in Article 70 (7), to re summon a dissolved Parliament in an “emergency”(hadisi thathvaya), is clearly quite distinct from the procedures on declarations of a “state of emergency”, according to the provisions of a different Chapter of the Constitution.  The word must be given its ordinary meaning, as unforeseen and dangerous circumstances, like a natural disaster, or a pandemic with grave risk to public health. Indeed many countries have considered the COVID 19 pandemic a national” emergency” in this sense. Even the Elections Act provisions on postponing elections in “electoral districts” refers to the capacity to respond to “an emergency or unforeseen circumstances” (Section 24 (3).

(2)      Some important   consequences follow if the President does not use his powers under Article 70 (7) to re summon Parliament, when the General Elections (25 April) and date for summoning the new Parliament (May 14) have to be changed because of the COVID 19 pandemic.

Three months Limitation for dissolution of Parliament and the summoning of the new Parliament

Article 70 5 (a) and (b) can be considered as incorporating   core principles of governance in the Constitution.  These Articles state very clearly that the Dissolution of Parliament MUST be followed by a General Election, and the summoning of a new Parliament NOT LATER THAN 3 MONTHS OF THE DISSOLUTION OF PARLIAMENT.

The Constitution gives a clear time frame, and a mandatory date of 3 months for both events. This is because the two institutions of governance (Parliament and the President) are meant to function together. The Constitution does NOT contemplate that the President will function in governance WITHOUT Parliament, for a period beyond the mandatory period of 3 months after dissolution of a Parliament. A Full Bench decision (of all judges of the Supreme Court sitting together) supports this legal position.  The judgment, pronounced by Chief Justice HNJ Perera, in the Dissolution of Parliament Case 2018 stated that the President’s powers duties and functions are limited by the specific provisions of the Constitution. His Lordship said, “Since 1972, this country has known no monarch…. and the President has not inherited that mantle.”

This interpretation conforms to Articles 3 and 4 of the Constitution, which deals with the concept of the “Sovereignty of the People” in a democracy. The Constitution is very clear that the “powers of governance of the People” are exercised through Parliament, exercising legislative power of the People and the President exercising the executive power of the People. Both Parliament and the President are equally important for governance. Both exercise what the Constitution describes as “the powers of government of the People.”

Since Article 70 (a) and (b) are mandatory for dissolution and re summoning the new Parliament, the Proclamation on Dissolution of 3 March 2020 becomes INVALID, when the dates specified within the 3 month limit in that Proclamation, cannot be kept, for holding General elections, and the summoning of the new Parliament.

This will mean that the old Parliament will   be reinstated after 2 June 2020 (3 months from date of Proclamation) and also acquire rights and responsibilities under the Constitution.

The President’s failure to accept that Parliament is now re-instated after 2nd June will involve a serious violation of the Constitution.  This will contribute to a constitutional crisis and a conflict between Parliament and the President. A general election held in these circumstances will be illegal.  The Constitution has no provision that will enable the President to summon the new Parliament after such an illegal election.  The Constitution does not cover such a situation as it is expected that a President will conform to the important provisions on dissolution and the summoning of the new Parliament under Article 70 (5).  The President has a legal obligation “to ensure that the Constitution is respected and upheld” (Article 33 (1), a concept that is reflected in the oath of office that he takes (Article 32 Fourth Schedule).

Elections Commission

When the Proclamation of 2 March 2020 becomes invalid, for violation of the time limit of 3 months, the EC has a problem. The date of the Poll for the General Elections according to the Elections Act has to conform with the Presidential Proclamation (s. 10 (1) (b) and 24 (1) (c). When the Proclamation becomes invalid the EC has no power under the Elections Act, to proceed with the poll. This is in addition to the argument already made in an earlier publication, that the EC has no legal authority to postpone a General Election. It was argued that the powers given to them by s 24 (3) to postpone elections in a “electoral district”, after the date for the General Elections is set in the Proclamation, because of an “emergency or unforeseen circumstances”, does not apply to a General Election. The difference between ‘electoral district” and General Elections is recognized in several articles of the Constitution. (Article 97, Article 70 (7),  and 155 (4)(1)(i) which refer to General Election).

Access to the Consolidated Fund for Financial Resources

Article 150 (3) of the Constitution is referred to by many politicians in government, and lawyers as an open ended Article which permits the President to access the Consolidate Fund after the dissolution of Parliament by Presidential Proclamation. No attention has been given to the fact that this too is linked to the provisions governing the validity of this Proclamation.

For this Article states that the President can access the Fund when Parliament STANDS DISSOLVED and, unto a 3 month period AFTER “the date on which the new Parliament is summoned to meet.” When the Presidential Proclamation ceases to be valid on 2 June 2020 due to the infringement of the 3 month time limit, the President has no power to access the Consolidated Fund. When there is no date for dissolution, or summoning of the new Parliament, because the 3-month time limit of the Dissolution Proclamation has passed, there is no legal basis for using these financial resources even for the limited purposes stated.

Discretionary power to use Article 70 (7)

It is in these difficult circumstances, where serious constitutional issues will arise after 2 June 2020, (lapse of 3 months from the Dissolution Proclamation) that the President should be advised to use his discretionary powers under Article 70 (7).  Re summoning the old Parliament, as Article 70 (7) suggests, can be for the strictly limited purposes of coping with the national “emergency”, of the COVID 19 public health crisis (a hadisi thathvaya). All parties of the Opposition have already expressed their willingness to support this effort, in their letter to the President.  The public will expect them to keep to that promise. Besides, a Parliament in session can pass an amendment with a transitional provision to the Elections Act that can resolve the current controversial legal issues on nominations, and also confirm the nominations that have been submitted.  Such a solution will be in the interest of the President and the Government, the Opposition and the People.

Article 70 (7) does not refer to the new date for General elections, or for summoning a new Parliament, when the President dissolves the reconvened Parliament because the COVID 19 pandemic no longer poses grave risks to public health. . At this point Article 70 (5) will regulate this matter again.  The President is therefore empowered to make a new Proclamation of Dissolution, setting new dates for the General Elections and the summoning of the new Parliament.

This country has for 70 years followed a system of governance based on written Constitutions. The Constitution incorporates concepts and principles related to a system of Parliamentary democracy. The People may have lost faith in the manner in which these institutions have functioned. However the COVID 19 experience has shown us how we must continue to strive for transparent accountable governance by a civilian administration, the basic foundation for such a system.

Dissatisfaction with politicians must remind us how important it is to exercise our right to vote at General Elections and elect Parliamentarians who by their conduct, deserve to hold public office. We are empowered in that regard. A public health crisis is surely a time to reflect on our responsibilities to each other as citizens and “rulers”, and reaffirm the value of Constitutionalism.   This is no time to say “discard the Constitution,” the basic law of the country.

Albert Einstein is reported to have once said “My political ideal is that of democracy. Let every man be respected as an individual and no one idolized…. The thing that has brought discredit to the prevailing form of democracy, is not to be laid at the door of the democratic idea as such, but the lack of stability of the heads of government and….the electoral system.”(The World As I See It; 2000)

Important thoughts to reflect on at this time.