The way forward | Daily News

The way forward

Part II:
Election Commission Chairman Mahinda Deshapriya
Election Commission Chairman Mahinda Deshapriya

As reported by communications dated March 31, 2020 and April 1, 2020, the Election Commission has requested the President to seek a determination from the Supreme Court on conducting the general election owing to the current situation concerning Covid-19 outbreak. The Election Commission has apparently said that failing to convene the Parliament on time if the pandemic continues, would create a constitutional crisis.

President’s secretary by his communication dated April 9, 2020, responded to the said communication.

Whilst referring to the Proclamation dissolving the Parliament, nomination period, handing over nominations, acceptance of deposits, etc; and also referring to the Gazette Notifications dated March 21, 2020 issued by the Commission stating that the election cannot be held on April 25, 2020 due to Covid-19 outbreak, brought its attention to the provisions of the Section 24(3) of the PEA and hence stated that circumstance has arisen for the said Election Commission to nominate a fresh date for polls.

By the said communication, the Office of the President also emphasis the fact that it is an inalienable right of the people to cast their vote at the election and further it also stated that there is no necessity to seek the opinion of the Supreme Court in respect of such matter.

Thus it is said that the reason ‘not to hold the election as scheduled was due to the Covid-19 outbreak in Sri Lanka’, constitutes an emergency or unforeseen circumstances due to which the scheduled election for the electoral district or districts of which it was to be held cannot be taken. The said Section 24(3) makes ample provisions to deal with such an issue. Thus it is an essentially a health and safety related issue involving the public health and not a question of law or fact to be referred to the Supreme Court. Thus it is clear that the Office of the President cannot be blamed for not referring such health related issue to the Supreme Court.

As extensively reported in media, party leaders and the candidates alike have agreed that, due to Covid-19 outbreak situation, that the general elections cannot be held until such time it is health wise safer to do so. It’s no doubt that the health authorities led by Director-General of Health and the Government must ensure that circumstances are improved to conduct the election.

Thus, it is legally correct in Election Commission deciding not to hold the election as scheduled but to nominate a fresh date for poll, which is yet to happen.

Lockdown/Curfew notices

By specifically issuing media statements from March 11, 2020 onwards, the President sought public cooperation to fight Covid-19. Further the Presidential Secretariat announced that it had established a task force (National Operation Centre for Prevention of Covid-19) to spearhead the control of the outbreak situation.

The nomination period by then was over and concluded.

Declaring a public holidays during the nomination period

As state above, Minister of Public Administration, by issuing an Order under Section 10(1)(a) of the Holidays Act No.29 of 1971, declared; “Monday, 16th March 2020 a public holiday, to support quarantine process on Coronavirus” and further stated same shall be extended if necessary.

By issuing another Order dated March 17, 2020 the said Minister declared that March 17, 18 and 19 of as public holidays to support the quarantine process on Coronavirus.

It was reported in the media that certain sections of the society is at issue on the alleged imposition of or declaration of public holidays during the nomination period, which fell in between March 12 to, noon March 19, 2020.

In this sitting it is important to examine the provisions that contained in the proviso to Section 10(2) of the PEA, which reads as follows;“..and if, after the publication of the Proclamation or Order referred to in subsection (1) (the nominations period and the date of the poll), the day specified in such Proclamation or Order is declared to be a public holiday, such declaration shall in no way effect the validity of anything done on such day for the purpose of taking the poll..”.

These statutory provisions are an ample testimony to establish that such subsequent declaration of a public holiday will have no adverse effect on the validity of the poll, which is yet to happen in the future. In any event it was widely reported in the media that, when the advice was sought from Attorney General by the Election Commission, the advice had been so given, to go ahead with the poll as the nominations have already been accepted and no objection has been raised at that time with regard to same.

Changing the date of poll by Election Commission due to the outbreak of Covid-19

Such re-scheduled day, namely, June 20 is clearly a date beyond the three months period envisaged in Article 70(5)(a) of the Constitution. Similarly, if another subsequent date has to be so nominated, such too would clearly be a date beyond the three months period envisaged by the Legislature.

Skillful drafters of the Constitution, in their wisdom, may have included Article 70(5)(c), which specifically provided for the variance of the date originally fixed for the first meeting of the Parliament by the (original) Proclamation mentioned above, which should be done by way of a subsequent Proclamation. However the drafters, in their wildest dreams, would never have even imagined that along with the whole world, Sri Lanka will have to face this type of an outbreak situation due to a contagious disease, which had spread across almost the entire world and that conductive environment will not be there to conduct the poll as originally intended, which would make is impossible for the Parliament to meet within the three months period as originally intended. When they drafted the proviso to the said subsection (3) placing the said limitation of three months period thereat, its beyond anyone’s imagination that due to a health related pandemic, the country will have to be locked down almost completely, following the international health guidelines or implementing local measures.

This proviso is so obvious that even the highest court of the land may not be in a position to alter, amend or nullify such provision, as it does not have the power or authority to so. Further it is also common ground that the Legislature cannot imagine all the possible scenarios that will happen in the world and make provisions remedying such.

In this setting when one looks at the scheme of the Constitution along with the provisions of the Parliamentary Elections Act, it is crystal clear that they are mandated to give effect to the exercise of sovereignty and the use of franchise at a timely held elections. Thus at a time if the general election cannot be held as scheduled and will have to be postponed due to the spread of Covid-19, it is not at all illegal to change the date of poll once again and in the name of democracy to have elections and elect the new Parliament.

Further there is no constitutional provision, which even remotely suggests that, when the New Parliament can-not be met, such Proclamation is made redundant and that it operates as a mandate to convene the old Parliament, which was dissolved.

Additional constitutional provisions as contained in Article 33(2)(c)

There is a presumption that ‘Legislature is deemed not waste its words or to say anything in vain’- page 208 of Bindra’s Interpretation of Statute, 12 edition, a publication of LexisNexis.

In this setting the writer is compelled to refer to the constitutional provisions of Article 33 now stands as amended by the 19th Amendment. The said Article 33 is of duties, powers and functions of the President.

In Sub Article (2)(c) of Article 33, the use of very specific words is obvious, which reads as follows;“ addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power ..(c) to summon, prorogue and dissolve the Parliament..”

The Legislature, when enacting these additional constitutional provisions by way of recent amendments to the Constitution, was well aware, that there are other constitutional provisions dealing with the summoning of, prorogation of and dissolution of Parliament and in fact was well aware of the constitutional provisions that contained in Articles 70(1), 70(5)(a) and 70(5)(c) of the Constitution. Thus, with that knowledge and wisdom, the Legislature would have thought it fit to introduce such an additional constitutional provisions as contained in the aforementioned Article 33(2)(c), to deal with and to make remedy to such unforeseen circumstances.

Thus it is said that in the name of democracy and for the wellbeing of the democratic policy and institutions, such additional constitutional provisions, by necessary implications of the Rues of Interpretation of Statues, interpreted to overcome the present situation, erupted due to Covid-19 outbreak in Sri Lanka and to hold the general election on June 20, 2020 or any subsequent date to which same shall be postponed and to summon the New Parliament to meet to transact its business.

Whether the Parliament which had been dissolved, should be summoned?

There are two specific provisions that contained in the Constitution relating to the re-summoning of the dissolved Parliament, pending election. They are the Article 70(7) and Article 155.

Article 70(7) comes under the Chapter XI dealing with the subject of procedure and powers of Legislature and in particular of the sessions of Parliament. In order to re-summon such dissolved Parliament, (which would stand dissolved upon the termination of the emergency or the conclusion of the general election, whichever is earlier), the President should be satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary.

The very words used by the Legislature is as such, that unless the President - who is democratically elected by the people– himself is satisfied that such emergency has arisen, no court or tribunal or other institution is empowered to impose upon the President to re-summon the Parliament which is already dissolved, in order to have fresh election to elect a new Parliament.

What has arisen today, in the world and in Sri Lanka, is a contagious disease, which is an essentially a health and safety related issue of the general public. The President elected by the people and the current Cabinet of Ministers, which together forms the Government, is in charge of the Republic is implementing measures to control and eradicate the said disease acting as per the provisions of or as provided for in the Quarantine and Prevention of Disease Ordinance and the Contagious Disease Ordinance and the Regulations made thereunder. It is suffice to say that, these have, together form an ample legislative cover to deal with such issue. In doing so, the whole world is supportive of Sri Lanka together with the specific agency of the United Nations, namely the World Health Organization.

Therefore necessity to re-summon the dissolved Parliament under Article 70(7) to deal with Covid-19 shall not arise or warranted.

Further the aforementioned Article 155(4)(i) which is contained in Chapter XVIII, is under the heading of Public Security. This Chapter deals with the power of the President to make emergency regulations by Proclamation, issuance of which if done, after the dissolution of Parliament, to operate as re-summoning the Parliament, etc.

As the President has not availed himself the provisions of the said Article 155 by promulgating such emergency regulations, the necessity to re-summon the dissolved Parliament under these provisions too shall not arise.

In view of the above, it is respectfully said that, when the scheme of the Constitution is to give meaning and effect to the franchise of the people and to accommodate it and at a time, when the Parliament is dissolved and the election cannot be held as scheduled due to an outbreak such as Covid-19, the Proclamation dissolving the Parliament is not made redundant or nugatory and as provided for in law such an election can be postponed and same shall be subsequently held and accordingly, and as per the additional powers entrusted to the President by the Constitution, the new Parliament can be constitutionally summoned to meet.

Such is the way forward.


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