The Way Forward | Daily News


 

The Way Forward

In this paper the writer proposes to discuss the issue of “at a time when the scheduled parliamentary election cannot be held due to outbreak of Covid-19, resulting in that the new Parliament cannot meet within the stipulated period of three months, whether there are provisions to proceed with the elections process, to conduct the election and to convene the new Parliament to meet at a future date or whether the proclamation is made redundant per se and operates as a mandate to re-convene the old Parliament, which was already dissolved”.

Exercise of Sovereignty by the People

As per Article 4 of the Constitution, which describes the power of the people to govern enacts that; “..the Legislative Power of the people would be exercised by Parliament consisting of elected representatives of the people and by the people themselves at a referendum, the Executive Power of the people, including the defence of Sri Lanka, shall be exercised by the President of the said Republic elected by the people”.

Such is the power and the authority of the people expressed by way of casting vote at the timely elections which are paramount importance for the maintenance of a healthy democracy.

Term of Parliament and General Elections

The governing law is the Parliamentary Election Act (PEA) No 01 of 1981, read together with the relevant provisions of the Constitution.

The term of the said Parliament was six years. However, by introducing the 19th Amendment, which was certified on the 15th May 2015, the said term had been reduced by one year, thus the term of the Parliament now stands at five years. (Article 62(2)

Article 62(2) specifically provides that the Parliament would be considered as dissolved after the expiration of such period of five years.

Prior dissolution

However further the Sub Article 2 of Article 62 also paves way for the prior dissolution of the Parliament, prior to the conclusion of the said period of five years. The words used are, “..Unless the Parliament is sooner dissolved..”.

There are two such other ways to dissolve the Parliament.

As per proviso to Article 70, the members of the Parliament themselves may make a request to the President to dissolve it, by passing a resolution not less than two-thirds majority.

The proviso to Article 70, as amended by the 19thAmendment, curtails the power of the President to dissolve the Parliament until the expiration of a period of not less than four years and six months from the date of first meeting of the said Parliament.

Thus it is clear, the President is constitutionally empowered to dissolve Parliament after the expiration of four years and six months.

In addition to the above, by Article 33 of the Constitution, as amended by the 19th Amendment, gives an additional power to the President, by its Article 33(2)(c), to summon, prorogue and dissolve the Parliament.

Dissolution of Parliament on 02nd March 2020

The President, who is elected by the people, is the Head of the State, the Head of the Executive and of the Government and Commander-in-Chief of the Armed Forces (Article 30). As per Article 42, Cabinet of Ministers of which the President is not only a member, but the head of it, is charged with the direction and control of the Government of the Republic.

 

At the Presidential Election that held on 16th of November 2019, upon gaining an overwhelming majority, Gotabaya Rajapaksa was declared elected as the Seventh Executive President of Sri Lanka. By his Election Manifesto (page 9) the said candidate specifically sought the mandate of the people to call for early Parliamentary Elections. The President, by exercising power under proviso to Article 70(1), dissolved Parliament on the 2nd of March 2020, by issuing a Proclamation. (Gazette No. 2165/8 dated 02th March 2020)

In such instance, as per Article 47(1), the Cabinet of Ministers functioning immediately prior to the dissolution of the Parliament shall, notwithstanding such dissolution, continue to function until the conclusion of the General Election. Thus it is clear that during such period the governance of the Republic is not made redundant. In such instance, as provided for in Article 150(3), the President is empowered to authorize the issue from the Consolidated Fund such sums, for the purposes of public service until the expiry of a period of three months from the date on which new Parliament is summoned to meet.

Mandatory elements of such proclamation

It shall fix a date or dates for the election. (Article 70(5) read with Section 10 of PEA). Thus it is clear that holding of the Parliamentary Election to elect Members of the New Parliament is mandatory. It shall also specify the date to summon the New Parliament to meet. Thus it is clear that summoning of the New Parliament to meet to transact its businesses is also mandatory.

However, such date of which the New Parliament must meet should be a date not later than three months after the date of such Proclamation dissolving Parliament. Thus it is clear that within three months of such dissolution, the New Parliament must be summoned.

The words “New Parliament” is of utmost importance. Thus it is understood that, to form the New Parliament, an election to elect the members of Parliament must be held, which is mandated to or entrusted with an independent commission called the Election Commission.

As such, the President fixed the date for the Election to be held on 25th April 2020 and 14th May 2020 as the date to summon the New Parliament to meet. The President also specified the nominations period.

As per Article 103(2), the Election Commission, is mandated to conduct free and fair elections and referenda. On the advice of the Commission, the President is to ensure the creation of proper conditions for the conduct of free and fair elections and referenda.

Once the Proclamation is issued by the President, duty to hold elections, as per the provisions of PEA and the law, passes on to the Election Commission.

Spread of Covid – 19

The WHO declared the outbreak of Covid-19 as a Public Health Emergency of International Concern (PHEIC) and issued a set of recommendations.

This virus has spread worldwide without acknowledging boarders. It has impacted all industries, all sections and all aspects of human lives with devastating economic and financial losses and significant uncertainties.

Thus, in dealing with the issue of holding the elections, it becomes important to consider the duration and magnitude of the outbreak and containment measures. As per today it is rightfully said that Sri Lankan authorities have managed the outbreak well within the borders of Sri Lanka by following, both local measures as per the law (Quarantine and Prevention of Disease Ordinance (Chapter 222), the Contagious Disease Ordinance (Chapter 223) and the Regulations made thereunder and international guidelines and thus the same is curtailed and the normalcy can soon be achieved, paving way for the conduct of the elections, following health guidelines.

Nominations

The Election Commission had announced that as the Minister of Public Administration and Home Affairs has declared Monday, the 16th March 2020, as a public holiday (which was in turn done as a measure to control Covid-19 outbreak), it cannot accept nominations or deposits on the said date and however announced that such would be received during office hours of both 17th and 18th of March 2020 from 8:00 to 12:00 noon on 19th March as notified earlier. This can be considered as a prudent move on the part of the Election Commission to take away and remedy any prejudice that would have caused due to declaring such a public holiday.

At the conclusion of the nomination period it is also evident that no one objected to the acceptance or non-acceptance of such nomination during the said nomination period or holding of elections.

As such it is rightfully said that the Parliament was dissolved and nominations had been handed over, paving way for the conduct of the election.

Acting under Section 24(1)(a) and (c)of the PEA, the Election Commission by Gazette Notification bearing No.2167/12 dated20th March 2020, notified that the polls (General Elections) will take place between 7:00 a.m. and 4:00 p.m. on 25th April 2020.

By issuing Gazette Notification bearing No.2167/19 dated 21st March 2020, acting under Section 24(3) of the PEA, the Election Commission announced that the election cannot be taken on 25th April 2020 as scheduled, due to the Covid-19 outbreak in Sri Lanka. It further notified that in due course, it will appoint a day, as the new day for the polls.

Section 24(3) of PEA, specifically provides that where, due to any emergency or unforeseen circumstances the polls in any electoral district cannot be taken as scheduled, the Commission may, by order published in the Gazette, appoint another day for the polls.

Thus it is clear that, the Legislature, at its wisdom, had made ample provisions to deal with such circumstances and in which event, both electors and the contestants, would not be prejudiced thereby and the democratic process is not being hampered.

Due to necessary implication and of the operation of an elementary rule of statutory construction or the interpretation of Constitution and Statutes, which says that the “singular includes plural, and vice-versa”, it is rightfully said that this provisions that contained in Section 24(3) provide the statutory cover for the holding such a general election on all the electoral districts covering the entire island or otherwise, on a future date after the dangers imposed by Covid-19 is over or controlled satisfactorily. (To be continued)


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