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A legal Perspective

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

The Summoning of Dissolved Parliament by the President

The Constitution provides two ways in which the President can re-summon a dissolved Parliament;

Firstly, Art 70(7) provides that, “if at any time after the dissolution of Parliament, the President is satisfied that an emergency has arisen of such nature that earlier meeting of Parliament is necessary that he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than 3 days from the date of the Proclamation, and such Parliament shall stand dissolved upon the termination of emergency or 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 of the parliament is deemed necessary.

There is another danger for the President, if the parliament is summoned under this Article, it can be dissolved on the grounds mentioned in Art 70(7). There is no provision for the President to dissolve that Parliament by another Proclamation. Therefore If the Parliament is summoned under this Article it is highly probable that Parliament drags on till the conclusion of the General Election. Then it will create a Constitutional crisis. Then the government has to seek the decision of the Supreme Court. It is also noted under Art 155 (4) (i) When the Parliament is summoned it can be again dissolved by the President by a Proclamation, in addition to the conclusion of the General Election. Therefore the President should be mindful of not summoning Parliament under Art 70(7) of the Constitution.

Secondly, in terms of Art 155(4)(i) a Proclamation issued under Public Security Ordinance would operate as summoning of the dissolved Parliament. This Article will 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 10th day after such Proclamation. Nevertheless so far no such Proclamation under 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.

However, an argument has been put forward through the media by some members of the public and professionals that, consequent to fixation of election date after the lapse of three months from the date of dissolution, the original Proclamation of the President dissolving the Parliament dated 02/03/2020 becomes invalid and on the strength of such invalidation, the (old) Parliament shall be re summoned. This is not a valid argument. The election on 14/05/2020 as prescribed by the President dated 02/03/2020 could not be implemented not due to the fault of the President, but due to the outbreak of Corona, The new date 20/06/2020 has been fixed by the EC under the provisions of PEA. The part of the activities has done under 02/03/2020 Proclamation-namely nominations duly attended to and accepted thereafter by the EC. Therefore the nominations done under the Proclamation dated 02/03/2020 is valid together with the Proclamation itself.

The rest of the activities under the said Proclamation became frustrated due to natural cause (Act of God ) for which alternative date of 20/06/2020 has been declared by the EC under the provisions of PEA. However EC has no powers under the PEA to announce the date of meeting of the new Parliament, that can be done by the President. The President can fix a date by a Proclamation for new Parliament only after Members of new Parliament has been elected by the parliamentary election, for which the EC has given a date – 20/06/2020. Notwithstanding the postponement of the 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 been already taken to give effect to it (acceptance of nominations, fixation of a date for election by the EC etc). Such actions have created Legitimate Expectation in the minds of people that elections would be held as scheduled. Hence there is no provision in law to reverse the process and invalidate the original Proclamation of the dissolution of Parliament.

The Consolidated Fund

Art 148 of the Constitution enacts that Parliament shall have full control over public finance. Accordingly no tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament, or of any existing law. However, the Consolidated Fund provided for by Art 149 of Constitution comes to the fore to relieve the government in case of its financial difficulties in meeting expenditure at the time of the dissolution of Parliament for the public services and election expenses. The relevant Articles of Constitution are 150(3) & 150(4). These two Articles are of immense assistance to the care taker government led by the President. Accordingly Art 150(4) makes provisions when Parliament is dissolved for the President to issue from the Consolidated Fund expenditure of such sums after Consultation with the EC for the election. Under Art 150(3) of the Constitution, the President can authorise the issue from the Consolidated Fund for the expenditure of such sums as he may consider necessary for the public services even until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.

It is also noted that as provided in Article 151 of the Constitution, Minister of Finance with the consent of the President may authorise in terms of that Article for an Advance to meet such expenditure from the Contingencies Fund.

On the strength of the above provisions, the present government may not face financial difficulties despite the dissolution of Parliament to meet the expenses for public services and forthcoming parliamentary election.

The Election Commission and Parliamentary Election

It is well known now that the pandemic messed up country’s plan for a smooth parliamentary election on 25/04/2020 and even a new date fixed for election (20/06/2020) hangs in the balance. The media reports reveal that the EC is expected to re-evaluate the situation of the country soon before starting to issue preferential vote numbers. A myriad of challenges are before the EC in conducting this national election amidst a pandemic. Political parties and candidates have also faced a conundrum as to how they conduct the campaign. The election campaigns are set to start after May 04th but all forms of functions, processions and meetings are still banned to help control the spread of the virus.

Sri Lanka does not have legal provisions for electronic voting leaving it far behind the rest of the World. Conducting the elections would have been easier and the less risking had such legal provisions been available at this moment. Moreover the safety of the election staff, public servants, security forces and the police, voters is a serious matter that will need careful consideration lest we regret later. The EC Chairman, Mahinda Deshapriya, as the media reports reveal, has held one electronic voting demonstration in Parliament several years ago to start it on a pilot project in several areas. However it is matter of regret that the correct vision of the incumbent Chairman / EC could not be realised because the legislature had failed to give serious consideration to it by making laws or relevant amendments to the law to enable the electronic voting in the country. Our election laws need reforms to attract ‘among others’ technological developments.

The members of the EC are holding high public offices. They owe legal and ethical duties. Within it they may have different views. But outside the Commission must have one voice.

The Speaker and The issue of Summoning Parliament:

In terms of Article 64(2) of the Constitution on the dissolution of Parliament a Member holding office as the Speaker or the Deputy Speaker or the Deputy Chairman of Committees ceases to be a Member. Article 64(4) provides that if Parliament after having been dissolved is summoned under paragraph (7) of Article 70 each of the members mentioned in paragraph 2 of this Article shall notwithstanding anything therein resume and continue to hold his office while that Parliament is kept in session.

Here it is necessary to mention Article 41A 7(a) of the Constitution as amended by the 19th Amendment of the Constitution. As provided in Article 41A 7(a) "on the dissolution of Parliament notwithstanding the provisions of paragraph (2) of Art 44, the Speaker shall continue to hold office as a Member of the Constitutional Council until a Member of Parliament is elected to be the Speaker under Paragraph (1) of the aforesaid Article”. Therefore the Speaker has no role to play upon dissolution of Parliament as summoning of Parliament and conduct Parliamentary sessions under the Constitution. (To be continued)

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