The Covid-19 pandemic has spread worldwide causing major disruptions to the countries. As to the rapid spread of this fatal disease the countries are solely focused on taking measures to prevent the spread of the virus which has resulted in holding the countries’ usual activities. One such measure that Sri Lanka was compelled to take is the postponement of the Parliamentary Elections which was fixed for 25.04.2020. The Commissioner has now fixed it for 20th June 2020.
A controversy has been created by several opportunists over holding elections after lapse of three months from the date of proclamation on dissolution of Parliament. They rely of Article 70(5) which mandates the President to fix a date not later than Three Months from the date of proclamation to meet the new parliament.
The constitution of Sri Lanka states the duties, powers and functions of the President under Article 33. Article 33(2)(c) grants the President the power to summon prorogue and dissolve Parliament. Articles 70(1) and 75(5)(a) mentions regarding the dissolution of Parliament before its full term. Article 70(1) of the Constitution states that “the President may by proclamation, summon, prorogue and dissolve Parliament.” and article 70(5)(a) states “a Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall fix and summon the new Parliament on a date not later than three months after the date of such proclamation”.
Accordingly the President dissolved Parliament by proclamation dated 02.03.2020. Nominations were to be called between 12th and 19th March, elections to be held on 25.04.2020 and the new Parliament to be met on 14.05.2020. All such dates fall within three months from the date of the proclamation.
The powers, functions and duties of the Election Commission are stated in Article 104 B of the Constitution. Article 104(2) states that it shall be the duty of the Commission to secure the enforcement of all laws relating to the holding of any such elections or the conduct of the referenda and it shall be the duty of all authorities of the state charged with enforcement of such laws to co-operate with the Commission to secure such enforcement.
However due to the unexpected COVID 19 outbreak administrative measures were taken in order to cope with the pandemic. In such situations the Election Commission has the authority to postpone the elections under section 24(3) of the Parliamentary Elections Act No.01 of 1981. Section 24(3) of the Act states that “where due to any emergency or unforeseen circumstances the poll for the election in any electoral district cannot be taken on the date specified in the notice relating to the election, the Commissioner may, by order published in the Gazette appoint another day for taking of such poll and such other day shall not be earlier than the 14th day after the publication of the order in the Gazette.” This is a standalone section (sui generis) and therefore the Election Commission is not compelled to follow the three months limitation specified in Article 70(5)(a) of the Constitution.
However on application of the “rule of harmonious construction of interpretation of statutes” the powers and duties of the President cannot be read as in conflict with the powers and duties of the Election Commission. Therefore the Election commission’s decision of fixing 20.06.2020 as the new date for the elections is lawful and constitutional in the light of the seriousness of the unexpected pandemic conditions.
Article 70(5)(c) of the Constitution says “the date fixed for the first meeting of Parliament by a proclamation may be varied by a subsequent proclamation shall be a date not later than three months after the original proclamation”. In this Article the date fixed for the first meeting of Parliament implies the date fixed to summon the new Parliament. However, it is not possible for the new Parliament to meet until the elections take place on 20th June 2020. The new date fixed for elections is done for medical reasons by the Election Commission. There is no involvement of the President in deciding and fixing of the new date (which is done by EC under section 24(3) of the Parliamentary Elections Act).
The maximum “lex non cogit ad impossibilia” which means that the law does not compel a person to do an act which is impossible to perform, applies to this situation. Nevertheless the President can still issue a proclamation under Article 33(2)(c) read with Article 70(1) summoning the new Parliament. In the absence of Three Months’ limitation in these Articles (33(2)(c) and 70(1)) the President may wait until the election of new Members for the Parliament to issue a fresh proclamation summoning the new Parliament.
Therefore the President has constitutional sanction to summon the new Parliament after the Parliamentary Elections are held and completed on 20th June 2020.
The Constitution provides two ways in which the President can re-summon a dissolved parliament. Firstly, Article 70(7) provides that “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 the 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 Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election whichever is earlier”. However Parliament can be re-summoned under this article only if the President is satisfied that such an emergency has arisen of such a nature that an earlier meeting off the Parliament is deemed necessary.
The basic powers and functions of the Parliament are to have control over public finance and to pass new laws. But during when Parliament is dissolved the President is authorised to draw funds from the Consolidated Fund to run the Government under Article 150(3) of the Constitution.
Article 150(3) states that “where the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law, he may, unless Parliament shall already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet”. The previous Government did not pass an Appropriation Bill for the year 2020 and Parliament was dissolved before the passing of the Appropriation Bill for the year 2020. However on 23.10.2019 the previous Government passed only a “Vote on Account” (under Article 150(2)) for the period from 1.1.2020 to 30.04.2020. It does not have any provision allocated to cope with the Covid-19 pandemic. Further no funds are allocated for the period after 30th April in the Vote on Account. Therefore the President has the power to draw from the Consolidated Fund for expenditure for public service on matters which are not provided in the Vote on Account until 30th April and for all expenses of the government from 30th April up to three months form the summoning of the new Parliament.
Further existing laws are well sufficient to deal with the pandemic situation in the Country. They include, the Public Security Ordinance, Police Ordinance, Consumer Affairs Authority Act, Foreign Exchange Act, Customs Ordinance, Quarantine and Prevention of Deceases Ordinance, Essential Commodities Reserves Ordinance etc.
Under the circumstances there appears to be no emergency of such a nature that an earlier meeting of the Parliament is necessary under Article 70(7) of the Constitution.
Secondly in terms of Article 155(4)(i) a Proclamation issued under Public Security Ordinance would operate as summoning of the dissolved Parliament. Article 155(4)(i) states that “if such proclamation is issued after the dissolution of Parliament such proclamation shall operate as summoning of Parliament to meet on the tenth day after such proclamation unless the proclamation appoints an earlier date for a meeting which shall not be less than three days from the date of proclamation and Parliament so summoned shall be kept in session until the expiry or revocation of such or any further proclamation or until the conclusion of the General Election whichever event occurs earlier and shall thereupon stand dissolved”.
This article will only apply when a proclamation is issued under the Public Security Ordinance after the dissolution of Parliament and such proclamation shall operate as summoning of the Parliament to meet on the tenth day after such proclamation. Nevertheless no such proclamation under the Public Security Ordinance has been issued by the President thereunder. Therefore it is clear that there is no Constitutional requirement to summon the (old) Parliament already dissolved.
However, an argument has been put forward by opportunists that consequent to fixation of an election date after the lapse of three months from the date of dissolution, the original Proclamation of the President dissolving the Parliament becomes invalid and on the strength of such invalidation the old Parliament should be re-summoned. This is per-se a baseless and invalid argument. Notwithstanding the postponement of the date of election, the validity of the President’s proclamation dated 02.03.2020 remains intact. There is no law to make it invalid, especially when steps have already been taken to give effect to it (acceptance of nominations, fixation of a date for election by the Election Commission etc.). Such actions have created legitimate expectations in the minds of the people that the elections would be held as scheduled. Hence there is no provision in law to reverse the process and invalidate the original proclamation of dissolution of Parliament. Therefore there is no Constitutional provision which warrants the re-summoning of the dissolved Parliament.
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