A legal Perspective | Daily News


 

A legal Perspective

COVID-19, its Relevance to Summoning Parliament and Postponing Elections

The Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered   Coronavirus. Most people infected with the COVID-19 virus will experience as medical experts reveal mild to moderate respiratory illness and recover without requiring special treatment.  Older people and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer are more likely to develop serious illness. The COVID-19 virus spreads primarily through droplets of saliva or discharge from the nose when an infected person coughs or sneezes, so it is important that we also practice respiratory etiquette.

WHO has recently published Guidance (Addressing Human Rights as key to Covid 19 Response).  This Guidance document highlights the importance of integrating a human rights – based approach into the Covid-19 response and highlights key considerations in relation to addressing stigma and discrimination, prevention of violence against woman, supports for vulnerable population, quarantine and restrictive measures and shortages of supplies and equipment.

The outbreak of Covid 19 disease was first identified in December 2019 in the Chinese city of Wuhan. Since then there has been a rapid growth in the disease throughout the World and on 11th March 2020, the WHO declared that the disease has reached the level of a ‘Global Pandemic’. The growing global pandemic of the corona virus (COVID-19) disease has gradually encroached upon Sri Lanka, with the country following a pattern of an exponential growth in the number of cases detected particularly over the last few days due to expanded detention coverage.

This is why the government has strengthened its health activities and has called for calm, restraint and common sense urging the public to engage in safe health practices while at the same time avoiding public gathering that could provide the impetus to spread the disease. Irresponsible conduct of certain individuals place the safety of the rest of the public in jeopardy by failing to adhere to advice and guidelines laid down by the authorities to combating the virus. It is also praiseworthy that the Opposition parties have very recently issued a joint statement to work ‘in a spirit of responsible cooperation’ with the government ‘for the common good of people and the country, amidst the Covid-19 pandemic.

The Legislation of utmost importance in dealing with this disease is the Quarantine and Prevention of Diseases Ordinance No 3 of 1897 as amended. The regulations under the statute covers a vast scope to prevent disease and related health aspects including restrictions on public conduct including curfew. The powers of Health Minister under regulations made can delegate her powers to other officers. The police officers are also authorised to act under this ordinance.  Regulations made by the Minister covers vast areas; establishing and maintaining quarantine stations, manner of burial or cremation of dead persons from this disease, inspecting aircraft, vessels and boats and other vehicles and premises, isolation of cases of the disease. The Security Forces and the police among others are making much use of this statute benefiting the people.

We as citizens pay our tribute to health authorities, Security Forces, the police and the related services, intelligence divisions, public administration, statutory bodies, banks, university authorities, media, and proper directions by the President, the Government and the Health Minister, not the least, for their life-risk services on behalf of all, in return for which we must give fullest cooperation as advised to save our lives. This is really a reciprocal duty to be performed by both parties, the Government and the citizens in combating the disease.

The Sequence of Factual Developments

The sequence of factual developments concerning the summoning of Parliament and postponing the elections as related to Covid-19 is outlined below; The President by Proclamation dissolved Parliament on 02/03/2020 and fixed dates for parliamentary election on 25/04/2020 and the summoning of the new Parliament on 14/05/2020. Accordingly the Election Commission (EC) started under Parliamentary Elections Act No 01 of 1981 its work calling for nominations and thereafter completed that task.  However Chairman of the Election Commission announced on 19/03/2020 that the election could not be held as scheduled on 25/04/2020, due to coronavirus outbreak.

The Election Commission then requested the President to obtain an opinion of the Supreme Court on this matter under Article 129 of the Constitution.  The President showing reluctance to engage in this election matter replied urging the Election Commission to make use of the relevant provisions of the law for that purpose as the law is available to them. Thereafter the Election Commission having had discussions with health authorities and others announced the new date of the election as 20/06/2020. In the meantime according to media reports some individuals were expected to bring this matter before the Supreme Court. The grounds relate to questioning of the validity of the President’s Proclamation under current developments, questioning the Government’s expenditure for public services after 30/04/2020, insisting on a further delay in the conduct of elections fixed for 20/06/2020 due to the outbreak and demanding re-summoning Parliament by another Proclamation by the President.

Argument  for Validity of President’s Proclamation

In terms of Article 62(2) as amended by the 19th Amendment to the Constitution, unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer and expiry of the said period of five years shall operate as the Dissolution of Parliament. Moreover Article 70(1) of the Constitution which is relevant at this stage has been amended by the 19th amendment to the Constitution. In terms of amended Article 70(1) of the Constitution “the President may by Proclamation summon,  prorogue and dissolve the Parliament” However a proviso is attached to this sub-section (1) of Article 70.

This proviso reads as follows;

“Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”

In terms of Article 70(5)(a) a Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Accordingly in compliance with the aforesaid provisions, the President dissolved Parliament by Proclamation dated 02.03.2020. Nominations were to be called between 12th and 19th March 2020, and election 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.

Both Articles 70(5)(a) & 70(5)(b) entitle the President to fix several dates for parliamentary election. As provided in Article 70(5)(c) of The Constitution, the President can also vary the date fixed for the meeting of the new Parliament up to any date within three months of the first Proclamation made on 02/03/2020. The Constitution of Sri Lanka states the duties, powers and functions of the President under Article 33. Article 33(2)(c) grants the President to summon,  prorogue and dissolve Parliament. Articles 70(1), and 70(5)(a) mention regarding the dissolution of Parliament before its full term.

Powers and Functions of Election Commission

The powers, functions and duties of the Election Commission are stated in Article 104 (B) of the Constitution (as amended by the 19th Amendment). Article 104 B (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 election or the conduct of the Referenda and it shall be the duty of all authorities of the State charged with the enforcement of such laws to cooperate with the Commission to secure such enforcement.

The Election Commission in terms of sec 24(1)(c) of the Parliamentary Elections Act (PEA) is supposed to conduct the elections on the day nominated by the President in terms of sec 10 of the Parliamentary Elections Act, which is the same date given in terms of Art 70(5) of the Constitution. Sec 10 of Parliamentary Elections Act is found in Part II (Nominations) of the Act. Section 24(1) of the PEA provides for Notice of Poll. In terms of Sec 24(2) where due to any emergency it is necessary that situation of any polling stations should be different from that specified in the Notice of Poll, the Commission can alter the place of station. Moreover under sec 24(3) of the Act, where due to any emergency or unforeseen circumstances, the poll for the election in any electoral district cannot be taken on the day specified in the Notice of the Poll, the Commission may by order published in the Gazette appoint another date and such other day shall not be earlier than the 14th day after the publication of the order in the Gazette.

Sec 113 of the PEA is also important to mention here. Accordingly 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 that order, the President may at any time by notice in the Gazette issue another order that, an election should be held in that district. This is a provision available to the President under the circumstances mentioned therein even to the issue notice relating to the election.

However, due to the COVID-19 outbreak administrative measures were taken in order to cope with the pandemic. In such situations the EC has the authority to postpone the elections under sec 24(3) of the PEA. Therefore the EC is not compelled to follow the three months limitations specified in Article 70(5)(a) of the Constitution. Accordingly the date of the election fixed by the EC as 20/06/2020 is valid. Whenever necessity compels it justifies (quod necessitia cogit excusat).

Article 70(5)(c) of the Constitution provides that, “the date fixed for the first meeting of the Parliament by the Proclamation under Art 70(5)(a) may be varied by subsequent Proclamation provided that the date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the original Proclamation” . In this Article, the date fixed for the 1st 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 20/06/2020.

According to a one well established legal principle, “Lex non cogid ad imposibilia”. The law does not compel a person to do which he/she cannot possibly perform. When the new Parliament is unable to be summoned due to a practical reason like the pandemic, the law does not compel to do so.

The new date for elections is fixed for pandemic reasons by the EC. There is no involvement of the President in deciding and fixing of the new date which is done by the EC under sec 24(3) of the PEA.

Nevertheless the President can still issue a Proclamation under Art 33(2)(c) read with Art 70(1) summoning of the new Parliament. In the absence of the three months limitation in these two Articles (33(2)(C) and 70(1)) the President may wait until the election of new Members of Parliament as fixed by the EC as 20/06/2020 to issue thereafter 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 20/06/2020. If the elections cannot be held on this date, the law entitles EC to fix another day or dates as stated earlier to hold the election. It is only after the election is lawfully completed, then the President can issue a Proclamation fixing a date for the new Parliament to meet.

(To be continued)


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