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A looming constitutional crisis, courtesy Covid-19

Sri Lankan president Gotabaya Rajapaksa, left, leaves after addressing the ceremonial inauguration of the session in Colombo, Sri Lanka, Friday, Jan. 3, 2020. (AP Photo/Eranga Jayawardena) via The Diplomat

 

Sri Lanka is fighting hard, to the best of all its citizens’ abilities, to deal with the current global pandemic caused by the coronavirus. To its credit, Sri Lanka seems to be doing well compared to many other developing countries. Let us hope that we in Sri Lanka could ensure a speedy end to the threat posed by the said Covid-19.

However, there is a growing acceptance that Sri Lanka was tragically still late in focusing its full attention on the prevention and management of this pandemic. On the 11th March 2020, the World Health Organisation (WHO) declared COVID-19 a pandemic. It is apparent that priorities were divided within the government vis-à-vis ensuring democratic governance and dealing with the health situation of the country caused by the pandemic. The President appears to have made decisions on the basis of political advice rather than public health advice. Despite introducing a wide range of severe social distancing measures, he did not take measures to prevent public servants from organizing the election, campaign or nomination for Parliamentary elections on the 19th March 2020.

Introduction

At this time of crisis, it is imperative that the government takes all necessary action. But that action must be on the basis of the rule-of-law. Otherwise, inadvertently, the public health response and economic relief may be delayed or affected. Second, as Asia’s oldest democracy, we have proved that we can meet any challenge – from natural disasters like the Tsunami, insurgencies or terrorism – within the framework of constitutional democracy.

When this unprecedented health and economic crisis is upon us, we must ensure that that all arms of the government are fully operational to meet any eventuality. This is certainly no time for a constitutional crisis. There should not be any backsliding of democracy. Unfortunately, unless the President takes immediate corrective action, a constitutional crisis – the second in two years – will be added to these extremely grave health and economic crises.

Background

The term of the 15th Parliament ends on 1 September 2020. The President, exercising his constitutionally permitted discretionary powers, dissolved Parliament by Proclamation six months early, with effect from 2nd March 2020 by Gazette Extraordinary No. 2165/8-2020 and dated 2nd March 2020. In that Proclamation, the President also fixed 25th April 2020 as the date for the Parliamentary General Election and 14th May 2020 as the date on which the newly elected Parliament shall meet. These are required by the provisions of Article 70 (5)(a).

Election Commission

Further to the above Proclamation issued by the President, the Elections Commission, as required by law, fixed 19th March as the last date for nominations. Despite social distancing measures being in force, nominations for the Parliamentary Election were duly received by the respective returning officers.

At the conclusion of receiving nominations and declaring the number of nominations received by returning officers, the Election Commission is required to publish a ‘notice of poll’ through a gazette notification in terms of section 24 of the Parliamentary Elections Act.

The Election Commission did not publish such a ‘notice of poll’. On the contrary, it published what it called a ‘notice of no poll’.

In the case of any emergency or unforeseen circumstances, Section 24(3) of the Parliamentary Elections Act empowers the Election Commission to postpone the election to another a day. However, the Act does not empower the Election Commission to postpone the election without fixing another date.

The Election Commission, however, has stated in the Gazette Extraordinary No. 2167/19 – 2020 and dated 21-03-2020 that said poll cannot be taken on the 25th April 2020 due to the Covid-19 outbreak in Sri Lanka. It also stated that it will appoint a day that falls after fourteen days from the 30th April 2020 as the day for said poll.

In other words, according to the Election Commission, this future Parliament, which will be the 16th Parliament, cannot meet on the 14th May 2020 as notified by the President in his proclamation dissolving the 15th Parliament.

It is in this context that the Election Commission has requested the President to seek the opinion of the Supreme Court as to the course of action he should take in this situation, which many have opined as a ‘constitutional crisis’. Unless Parliament reconvenes, the Election Commission has a constitutional duty to complete polls by 2 June. That is its sole mandate. Unless the President acts now, social distancing measures will have to be suspended for campaigning and the conduct of the poll. The President has a significantly more expansive mandate. Public health, economic succour or other considerations are for the President to be concerned with and take necessary action.

What can the President do?

The President may or may not exercise that option, as it comes within his discretion. We are of the view that he should not exercise his discretion in seeking the Supreme Court’s opinion. Rather he should avoid any doubt, uncertainty and uphold constitutional democracy and the rule-of-law by rescinding Gazette Extraordinary 2165/8-2020.

As the President dissolved Parliament with effect from 2nd March, according to the provisions of Article 70(5)(a) of the Constitution, the latest possible day on which the new Parliament must meet is 2nd June 2020. This date is absolute. But no free and fair election can practically be held in time for the new Parliament to so meet. This leads up the current imbroglio.

The Constitution also casts a prime duty upon the President to uphold the Constitution of the Republic. Article 33(1) says that it shall be the duty of the President to:

“(a).       ensure that the Constitution is respected and upheld;

……………..

(d).        on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referendum.”

In our opinion the President has the following options within the existing constitutional framework.

Option I: Issue a New Proclamation

Wait till the 3rd week of April, then, in consultation with the Election Commission, issue a proclamation fixing a new date for the summoning of new Parliament on or before 2nd June 2020. This permits the Election Commission to publish a new date for the poll. This option is wrought with the practical challenges of;

(a).       ensuring free and fair election as required by the Constitution, and

(b).       the unlikelihood of the realistic end of the challenges posed by the Covid-19 pandemic by the end of April allowing personnel of the Election Commission for the preparation of the poll in such an eventuality and creation of conducive environment for the candidates and parties to campaign and hold a free and fair election.

Therefore, in reality, this option is no option at all.

Option II: Invoke Article 70(7) to Revive the 15th Parliament

Under Article 70(7) of the Constitution, the President is empowered to summon Parliament any time after its dissolution to deal with an emergency. The provision reads as follows:

“If at any time after the dissolution of Parliament, the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier.” (emphasis is ours)

It can be seen that the above provision clearly deals with an emergency situation that has arisen after the Parliament has been dissolved. The spirit of which is clearly to deal with an emergency situation that would have arisen since the dissolution.

Option III: Rescind the Election Gazette (Gazette Extraordinary 2165/8-2020)

The President has the power to rescind his Proclamation dissolving Parliament dated 2nd March 2020. This can be done by another Gazette notification issued under the hand of the President. If this is done it would restore the Parliament which was originally elected by the People till 1st September 2020.

There is nothing in law prohibiting the President from exercising the above option. An option the President alone could do without recourse to anything or anyone else. If that option is resorted to and the Parliament is re-summoned, it would be a lawful and fully-fledged Parliament. Such a Parliament could do its business as usual till the 1st of September 2020. By which time, one could realistically hope that the pandemic would have abated both locally and globally, or the world would have geared itself to deal with it or counter it medically and peoples’ lives could have been restored to some degree of normalcy.

This would also mean that the next election could be held any time prior to 1st December 2020. This later date gives hope that Sri Lanka would be out of the pandemic and in an environment more conducive to hold a free and fair election. It would undoubtedly be constitutionally proper.

Option IV: Declare a State of Emergency under Article 155 of the Constitution

The President can also declare a State of Emergency under Section 2 of Public Security Ordinance (deemed an Act of Parliament under article 155 of the Constitution). Such a Proclamation requires the summoning of Parliament to continue its operation, generating an unquestioned constitutional duty to summon Parliament. It would also give the President the powers to ensure a legal basis for some of the preventative health measures that are currently being used.

Analysis of the Options

The President may not have been fully appraised of the gravity of the pandemic when he issued his Proclamation declaring early elections. However, as the unprecedented nature of the emergency is now clear to all, it is his constitutional duty to invoke the relevant provisions in the Constitution relating to Emergency and prevent a constitutional crisis at this time. Therefore, Option II, invoking 70(7) to revive the 15th Parliament may be the most constitutionally proper and practically prudent course of action.

We will run out of time if the President doesn’t exercise this discretion without delay.  It will be a missed opportunity to show the world, how as a nation, we have handled the constitutional crisis, even during the global crisis, within the framework of the Constitution. Invoking Section 70(7) enables this.

Inapplicability of the ‘doctrine of necessity’.

We understand that some have expressed their opinion that using the principle of the ‘Doctrine of Necessity’ as a justification to deviate the constitutional provisions. It is an accepted principle and settled law that doctrine of necessity could be invoked when there is no alternative course of action available as provided by the law. Hence in the current context, where there are express constitutional provisions available to be used to act within the constitution. Therefore, the applicability and/or use of the doctrine of necessity does not arise. Any advice contrary would be misconceived in law.

Section 113 of the Parliament Election Act:

A few politicians are said to have interpreted Section 113 of the Parliamentary Elections Act as vesting powers with the President to hold the election at a suitable future date overriding, inter alia, Article 70(5) of the Constitution. This interpretation is unconstitutional. It would be a dangerous attempt to twist and distort the law to flagrantly violate the express provisions of the Constitution to suit one’s partisan political agenda. Section 113 of the Parliament Election Act only deals with a situation where elections are held but incomplete due non-holding of the election in a specific district.

The Section 113 reads thus:

“If at any time after the President has ordered or fixed the date for an election, it is shown to his satisfaction that in any electoral district owing to any cause whatsoever no election has been held in pursuance of such Order be may at any time by notice in the Gazette issue another Order that an election shall be held in that district.”

It is elementary to understand the difference between holding of an election per say, albeit with some defects, and not having the ‘notice of poll’ at all.

Reconvening Parliament is Imperative

 There is no gainsaying that the Parliament ought not to have been dissolved on the 2nd March 2020. Outbreak of the Coronavirus – Covid-19 in China was reported prior to that. It was declared a pandemic by the WHO on the 11th March 2020 preceded by its announcement in January that it is a serious public health emergency of international concern. SAARC leaders including our President in their virtual deliberations, held prior to the 19th March 2020, acknowledged the seriousness of the pandemic. Thus, the President has demonstrated and acknowledged the emergence and existence of this unforeseen emergency subsequent to his dissolution of Parliament on 2nd March 2020.

The Election Commission, the moment it could assume power legally, upon the conclusion of the nominations on the 19th March 2020 declared that the Parliamentary Election cannot be held on 25th April 2020 as envisaged in the Presidential proclamation. Thereafter, the President has caused several measures amounting to a shutdown of sorts of the country including widespread ‘curfews’ and requests to work from home. All in clear and unambiguous acknowledgement of prevalent pandemic causing health hazards of unprecedented proportions.

This emergency has thrown open many a challenge. All of which were unforeseen. It has long before metamorphosised into a global challenge where governments and entire countries are reeling. Thousands are perishing on a daily basis. It would be foolhardy and or preposterous to assume that in the given the context the postponed elections could be held prior to the end of May 2020 or the new Parliament could be summoned before the 2nd June 2020.

The Election Commission too had indicated given the status of the pandemic it is impractical to hold elections anytime soon. Sri Lanka, at the time of writing, has not even gotten to the state where the ‘flattening of the curve’ has commenced. Let us hope it does soonest. In the meantime, any attempt to conduct the said poll or to entertain thoughts of it would be in total disregard to public good and would be to endanger the citizens’ health and wellbeing.

Hence the measures that are needed to be taken to successfully deal with the pandemic and exigencies created thereby should be done collectively and in terms of the law. Due to the prolonged space of time envisaged – more than three months – to hold the Parliamentary elections makes this all the more imperative. The President, being the head of the Executive, cannot perform the functions of the legislature.

As it stands, the elections have to be postponed well beyond 1st of June 2020. As it is, the government has no legal sanction to expend public finance beyond 30th April 2020. There are voices claiming that available funds are not sufficient to deal with the issue at hand even prior to 30th April 2020. In fact, all evidence suggests that a breach of the borrowing limit set by Parliament will occur imminently – well before April 30.  That means, the government will have no means of raising funds necessary for fighting the pandemic and providing economic relief.

New legislation may be needed to deal with the pandemic and its aftermath more effectively. All this behoves the President to reconvene the dissolved Parliament using the powers vested in him by the Constitution as opposed to ignore such Constitutional responsibility or resort to extra-legal measures.

The majority of the populace is seemingly content with the President and government’s handling of the pandemic thus far.  That is no reason for the President or the caretaker government to overlook and or violate the constitutional requirements to uphold the constitution of our democratic republic, the oldest in Asia. One can’t be complacent and be an onlooker when autocratic trends set in. For it is the legislature to which the people of this country have entrusted the power to make laws and to be the guardians of their finances.

The Constitution has provided exactly for such exigencies. It is to deal with such extreme situation that provisions have been incorporated in the constitution for it to be brought back to life while entrusting the keys to do so with the President. The President should exercise this power in the interest of justice and equity. The situation demands that he does this forthwith.

Thus, it leaves the President with no option but to reconvene the dissolved Parliament. It is imperative that he does so.  He could lawfully dissolve such a Parliament once the crisis is over. The government and President need not unduly worry about their numbers in Parliament. Almost every single political party that is represented in Parliament has publicly committed to support the government in these difficult times. On the other hand, getting Parliament to sanction public finance as well as other needed legislations to deal with the current crisis more efficiently would not only credit the government as having upheld the rule of law and enhance its legitimacy, despite being a minority government.

Any other course of action would be a serious violation of the Constitution. Article 70 of the Constitution, which has been interpreted in detail by the full bench of the Supreme Court in the Fundamental Right cases that were filed successfully challenging the dissolution of Parliament by the then President in October 2018.

 In any event, if, by 30th April, the Elections Commission fails to publish a new date for the poll falling between 14th May to 1st June, then the proclamation of the President dissolving Parliament will become void.

Conclusion

In this backdrop, if Sri Lanka is to remain a democratic country that upholds the rule of law the summoning of the Parliament is a sine qua non. The sooner it is done the better. The President can choose in what way he wants to reconvene the said Parliament. However, it is our view that the best course of action is invoking Article 70(7) of the Constitution. This requires the minimum action, sans any complication, requires no complex or strenuous legal arguments and well within the constitutional powers of the President. It also the only option that is, constitutionally speaking, his express and positive duty.

Once reconvened, the 15th Parliament could run its due course provided the President wishes it so. The Parliament, as the sole authority and guardian of Public Finance, could regulate and provide legitimate authority to the government to manage the public finances. It can correct and rectify any unconstitutional fiscal handling like what the Secretary to the Treasury purports do, wrongfully, by his letter dated 10th March 2020, what could lawfully be done in terms of article 150(3) only ‘from the date on which the new Parliament is summoned to meet’. It could pass necessary legislations to cater to the exigencies that arise due to adverse and unforeseen impacts of the pandemic and to fill in lacuna if any in other spheres including in relation to holding of elections. Further, it would provide with the definite period of time until almost the end of the year 2020 to hold a free and fair election, constitutionally. It would also provide a robust and effective system of deliberation and checks-and-balances to ensure the interests of all sections of society are represented in decision-making.

Reconvening the Parliament by the President forthwith would ensure that, more importantly, we would still be governed in terms of the law and upholding the rule of law which is a prerequisite for a democracy. On the contrary, citizens being compelled to have recourse to the Supreme Court either to have the Gazette dissolving the Parliament on 2nd March 2020 invalidated or to force the hands of the President to summon the Parliament in terms of Article 70(7) would mean that, sadly, we have not learnt our constitutional lessons.

by Ameer Faaiz, LL.M, Attorney-at-law, & Nizam Kariapper, LL.M, President’s Counsel, both are Director- International Affairs and Secretary General respectively of the Sri Lanka Muslim Congress.

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