Has COVID-19 pandemic created a constitutional crisis in Sri Lanka?

(Courtesy of Financial Times)

The dissolution of the Parliament by President Gotabaya Rajapaksa and the postponement of the General Elections has led to many legal arguments.

By Gazette Extra Ordinary No. 2165/8 dated 2 March 2020, the President issued a Proclamation dissolving the Parliament and nominated the 25th day of April 2020 as the date for the General Elections. The said Proclamation also summoned the new Parliament to meet on 14 May 2020.

By Gazette Extraordinary No 2167/19 dated 21 March 2020, the Elections Commission (EC) acting under section 24(1) (a) and (c) of the Parliamentary Elections Act No. 1 of 1981 published a notification fixing the polling date for the 25th April 2020.

Subsequently the EC by Gazette Extraordinary No 2172/3 dated 20 April 2020 changed the date of the Parliamentary Elections to 20 June 2020.

Many argue that a constitutional crisis has arisen due to the inability for the Parliament to meet on the date stipulated in the Proclamation and as a result the said Proclamation has been rendered invalid. It is also argued that due to this the former Parliament has sprung back to life and therefore is able to reconvene on its own.

Scope of this article

In that backdrop it is proposed to examine the legal position regarding the President’s Proclamation to dissolve the Parliament and the subsequent Gazette notification issued by the EC for General Elections to be held in June 2020.

We will proceed to examine the constitutional provisions relating to the dissolution of the Parliament by the Executive in the current and the previous Constitutions of the island and also the Parliamentary Elections Act (the Act) to ascertain whether the COVID-19 pandemic has in fact created a constitutional crisis in Sri Lanka.

President’s power to dissolve Parliament

The President has dissolved the Parliament in terms of Article 70 of the Constitution in exercising his powers as the Head of the Executive.

To find an answer to the question whether Sri Lanka is currently in a constitutional crisis one must carefully examine the rationale behind the power vested in the Executive to summon, prorogue and dissolve the Parliament.

The power vested in the Executive to dissolve the Parliament is not unique to the Sri Lankan Constitution. It is a common feature in the constitutions of countries around the world that the power to summon, prorogue and dissolve the parliament is vested with the executive. It is also a common feature in every constitution that when the executive dissolves the parliament, it is incumbent upon the executive to simultaneously nominate a date for the election and to specify a date to summon the new parliament.

Doctrine of Separation of Powers

Before the parliamentary democracies came into existence, countries were ruled by monarchs. The King or Queen enacted laws implemented those laws and sat on judgement on the subjects for the noncompliance of such laws. With the countries moving into parliamentary democracies, the powers exercised by the monarchs were vested in three different arms of the government called executive, legislature and the judiciary.

This principle is known as the ‘Doctrine of Separation of Powers’ and provides the foundation on which current constitutions of the countries around the world are based on.

Under the parliamentary system of governance, the executive, the legislature and the judiciary performed different functions.

  • Primary function of the parliament or the legislature is to enact laws (this is why the parliamentarians are known as lawmakers);
  • Function of the executive is to implement those laws through its administrative framework; and
  • Function of the judiciary is to interpret the laws enacted by the parliament. 

In terms of the Doctrine of Separation of Powers, whilst performing functions different to each other, each arm of the government exercises checks and balances over the other arm. However, one arm of the government should not attempt to usurp the functions of another arm.

For instance, when parliament enacts laws, court has the power to examine whether it contravenes any provision of the constitution and the parliament has power to remove judges for misconduct. The judiciary has the power to review decisions taken by the executive by issuing prerogative writs. Whilst the executive has the power to dissolve the parliament if parliament fails to act in the best interest of the constituents, the parliament too has the power to impeach the president.

The current Constitution of Sri Lanka is its third Constitution. The Doctrine of Separation of Powers is embodied in the current Constitution and was embodied in the two previous Constitutions as well. Although there are arguments that operation of the said doctrine in our Constitution is not as apparent as in the American and Australian Constitutions, it is an undisputable fact that the Sri Lankan Constitution is based on the Doctrine of Separation of Powers.

Article 4 of the current Constitution clearly stipulates that sovereign power of people in relation to Executive, Legislative and Judicial powers are exercised through the President, Parliament and the Judiciary respectively.

Rationale behind the Executive having to nominate a date for new Parliament to meet 

If the Executive is permitted to dissolve the Parliament without specifying a date to hold elections and a date to convene the future Parliament, it will enable the Executive to govern the country undermining the Legislature. It will undoubtedly pave the way for a dictatorial governance. Operation of the Doctrine of Separation of Powers will prevent the Executive from denying the sovereign right of the people to elect a Parliament to exercise their legislative power.

It is for this reason that whenever a Parliament is dissolved in any country in the world there is a stringent requirement for the Executive to stipulate a date for the election and a date to convene the future Parliament.

The requirement imposed on the Executive to act in the said manner is an acknowledgement of the sovereign right of the people to elect their representatives to the Legislature to exercise their legislative power.

Power of Executive to dissolve Parliament under current and previous Constitutions 

The 1978 Constitution paved the way for an Executive President to be the Head of the State.

Article 33(2) of the Constitution stipulates that summoning, proroguing and dissolving the Parliament is a function of the President.

Sub Articles of Article 70 which are relevant to the current situation are reproduced below.

70(1) The President may by Proclamation, summon, prorogue and dissolve Parliament,

70(2) Parliament shall be summoned to meet once at least in every year.

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.

70(5)(c) the date fixed for the first meeting of Parliament by a Proclamation under sub-paragraph (a) or sub-paragraph (b) may be varied by a 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.

70(7) 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 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 such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier.

An examination of the above Article 70 reveals that;

a)It is the Head of the Executive who has the power to summon, prorogue and dissolve the Parliament;

b)Upon the dissolution of Parliament, it becomes functus and hence cannot reconvene on its own unless and until the Executive summons it;

c)A Proclamation dissolving the Parliament should clearly specify date/dates for the general elections and the Proclamation should also nominate a date for the new parliament to meet; and

d)Article 70 (7) was included in the Constitution to address a situation where the Executive considered that the participation of the Legislature was necessary to enact new laws to address an emergency situation that had arisen after the dissolution of the Parliament. Article 70(7) in no way confers any right to the Parliament to meet on its own.

The above Article 70(5)(a) dictates that the President must specify two dates in his Proclamation dissolving the Parliament;

i.a date or dates for the election of Members of Parliament; and

ii.a date for the new Parliament to meet on a date not later than three months after the date of such Proclamation.

Article 70 (5) makes it apparent that President’s bounden duty is to fix the said dates in the Proclamation. If a Proclamation is issued without specifying those dates undoubtedly the said Proclamation will not have any force in law.

The Proclamation issued by President Rajapaksa stipulates a date for intended elections and a date for the new parliament to meet. Therefore, the Proclamation issued by the President is in compliance with Article 70(5) of the Constitution and hence valid in law. His actions clearly demonstrate that he has recognised and has given effect to the sovereign rights to the people to elect their representative to exercise the Legislative power of the people.

Article 70(5)(c) conferred an additional power on the President to vary the date fixed by his original Proclamation. This power did not exist under the previous Constitutions. The reason for this appears to be that 1978 Constitution created an all-powerful President. This is a prerogative power of the President which can be exercised at his will. The aforesaid Article is not designed to deal with a situation of emergency and therefore has no relevance to the current situation.

Even under the very first Constitution of this Country (“Soulbury Constitution”) the Executive had similar powers to summon, prorogue, and dissolve the Parliament.

In 1947 the Head of State in Sri Lanka then known as “Ceylon” was the Queen of England who exercised her Executive powers through a Governor-General.

Power to dissolve the Parliament was dealt with under Article 15 of the said Constitution as provided below:

15.1 The Governor-General may, from time to time, by Proclamation summon, prorogue, or dissolve Parliament.

15.2 Parliament shall be summoned to meet once at least in every year.

15.4 A Proclamation dissolving Parliament shall fix a date or dates for the general election of Members of Parliament, and shall summon a new Parliament to meet on a date not later than four months after the date of the Proclamation.

15.5 If at any time, after the dissolution of Parliament, the Governor – General is satisfied that an emergency has arisen of a such a nature that an earlier meeting of Parliament is necessary, the Governor – General may by Proclamation summon the Parliament which has been dissolved for a date not less than three days from the date of such Proclamation, and such Parliament may be kept in session until the meeting of the new Parliament.

With the enactment of a new Constitution in 1972 Ceylon became a Republic and a Ceremonial President replaced the Governor – General as the Head of the State. The Parliament then was called the National State Assembly (“NSA”).

It is apparent from Article 21(b) of the 1972 Constitution that summoning, proroguing and dissolving the NSA was a function of the President.

Article 40 of the said Constitution stipulated that the NSA can be dissolved prior to it completing the full term of six years.

Article 41(6) stipulated that the Proclamation dissolving the NSA should fix a date or dates for the election of members of the NSA and shall summon the new NSA to meet on a date not later than “four months” from the date of the Proclamation.

Article 40(2) empowered the President to reconvene the NSA to deal with an emergency situation which has arisen after the dissolution.

Effect of dissolution on the Parliament

Under the Constitution the life of Parliament can come to an end in two ways. Firstly, the completion of its full terms and secondly by early dissolution which can take place by the action of the Executive (This includes dissolution on the request made by the members of the Parliament). It is important that the power of the Executive to dissolve Parliament in Sri Lanka is a legitimate power which has been continuing since the inception of our Parliamentary system in 1947.

In the current instance the life of the Parliament of Sri Lanka has come to an end with the President dissolving the Parliament. Some argue that the former Parliament can be reconvened by the Speaker. It is to be noted that by virtue of Article 64(2) of the Constitution, the Speaker has already vacated his post upon the dissolution of Parliament.

The Parliament cannot convene on its own unless the Executive decides to summon it. If an attempt is made to reconvene the old Parliament, it will amount to Parliament usurping the power of the Executive which will be a gross violation of the principles of separation of powers. Such an act of the Parliament will undoubtedly be ultra vires and will have no legal validity.

By the 19th Amendment to the 1978 Constitution the right of President to dissolve parliament was severely curtailed in that the President cannot dissolve the Parliament till the completion of 90% of its full term. It is a very well recognised principle of law that if a statute confers a power on any entity or individual that it should be a meaningful power. However, the 19th Amendment to the Constitution, has reduced the power of the President to dissolve the Parliament to a meaningless state. This however is a topic for a separate analysis.

Even the 19th Amendment has not fettered the power of the President to dissolve Parliament. This power cannot be removed as it will violate the Separation of Powers principle on which the Constitution is based.

Role of the Elections Commission

Once the Parliament is dissolved, conducting the General Elections becomes the function of the EC established which is an independent body established under the Constitution.

Sec. 24(1) of the Act requires the EC to publish a date of poll.

Section 24 (3) of the Act empowers the EC to vary the above date due to any emergency or unforeseen circumstances. The said section read together with section 18 of the Interpretation Ordinance makes it clear that the EC’s power to alter the date of poll is not limited to one occasion.

Some argue that Section 24 (3) of the Act should be read with Article 70 of the Constitution. Therefore, in postponing the election, the EC cannot exceed the time frame stipulated by the proclamation published by the President.

Such an argument is erroneous for the following reasons.

President in exercising his powers under Article 70 of the Constitution commences the process of granting the opportunity to people to exercise their franchise.

Under the normal circumstances it is the duty of the EC to hold the Election as expeditiously as possible to give effect to the sovereign right of people to elect their legislators. However, sec. 24(3) of the Act makes it clear that its operation is not subject to Article 70.

Section 24(3) of the Act contemplates the situation where the EC is unable to hold elections due to unforeseen circumstances and Article 70 is silent on the issue as it only foresees normal circumstances and situations. Therefore, where the answer to address unforeseen circumstances cannot be found in the Constitution one has to revert to the Act where such a situation is specifically provided for.

Accordingly, the argument that the actions of the EC when acting under sec. 24(3) of the Act is restricted by the date specified by the Proclamation issued by the President under Article 70 will lead to absurdity. Does this mean that the EC can delay and postpone Elections unnecessarily? Holding Elections is giving effect to an executive action. If someone is aggrieved by the fact that the EC does not hold the Elections his or her remedy lies in Court as the Court can exercise checks and balances on executive action.

EC is now faced with the task of conducting a free and fair Election under the unprecedented hurdle it is facing now. The Commission may have to think outside the box and implement new ways and means to conduct the election.

This may be an opportunity to our country to change its political culture. In countries like Australia change of governments take place by elections without mass rallies and without any disruption to the day to day life of individuals. Unfortunately, in our country General Elections are more like a war between the contesting parties. This may be an opportunity for us to change the traditional ways of conducting elections. It is high time we learnt to vote for the policies put forward by the contesting parties.

Does inability of new Parliament to meet on date specified in Proclamation affect validity of Proclamation?

The argument that President’s Proclamation becomes invalid if the new Parliament cannot meet on the date specified in it defies common sense. As previously pointed out if the elections are unable to be held due to reasons beyond the control of the President, does that make the Proclamation issued by the President invalid? There is absolutely no merit in such an argument. The Proclamation issued by the President could have been bad in law only if a date was not specified for the new Parliament to meet.

For example, if after the General Elections, the new Parliament is prevented from meeting on the scheduled date due to unforeseen reasons (like the tsunami in 2004) does that prevent the new Parliament from meeting on a subsequent date? The answer is in the negative as the people who have elected members for the new Parliament will want them to meet. If such a situation arises there is nothing to prevent the President from summoning the new Parliament under Article 70 of the Constitution.

Is the President duty-bound to re-summon Parliament in terms of Article 70(7) of the Constitution?

Some opine that the President is duty-bound to reconvene the Parliament in view of the current pandemic. It is not disputed that the Sri Lankan Government is doing its best to tackle the current health crisis which is not only affecting Sri Lanka but the entire world.

It is the function of the machinery of the Executive to take appropriate measures to curb the current situation. The Parliament cannot start directing the health officials and others who are engaged in eradicating this threat as to how they should go about in achieving that. It will amount to an attempt to usurp the power of the Executive.

However, if the President considers that new laws are needed to curb the situation, then that will require the Parliament to be re-summoned as enacting laws is the function of the Legislature. This is precisely the situation Article 70(7) of the Constitution envisages. Therefore, it is the President who has to determine whether the Executive needs the assistance of the Legislature to enact new laws. If there is no lacuna in the existing laws the requirement does not arise. If a person is aggrieved by a measure taken by the authorities on the basis that such action is ultra vires or an infringement of a Fundamental Right guaranteed by the Constitution, he or she can seek redress from the Courts.

However, Members of the dissolved Parliament cannot compel the President to summon the dissolved Parliament. Nor can the Courts direct the President to do so as it lacks jurisdiction. It remains the prerogative of the President.

Arguments have been mounted that the reconvening of the Parliament is necessary as the Parliament has the full control of Public Finance in terms of Article 148 of the Constitution. However, Articles 150 and 151 permits the President to meet the necessary expenditure from the Consolidated Fund and the Contingencies Fund. The present Minister of Finance will be accountable to the newly-elected Parliament in relation to this expenditure.

Conclusion

The COVID-19 pandemic has not created any constitutional crisis in Sri Lanka. The President’s action in dissolving the Parliament and fixing the date for a General Election is well within the framework and the spirit of the Constitution as it is an action to give effect to the sovereign rights of people to elect their members to the Legislature.

The summoning of the dissolved Parliament falls exclusively within the discretion of the President. The idea that the Parliament can convene on its own is simply fanciful and not supported by any legal principle.

[Tatiyajith Karunaratne (LL.M Melb.) Barrister and Solicitor in Australia, former Deputy Solicitor General, Attorney General’s Department of Sri Lanka and Visiting Lecturer in Constitutional Law at the Sri Lanka Law College.]

[Dilrukshi Karunaratne (LL.M Wales) Barrister and Solicitor in Australia, former Partner, Messrs. Julius & Creasy Attorneys-at-Law Colombo Sri Lanka.]



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