By Harindra Dunuwille
(The Writer a former Mayor of Kandy is an Attorney-at-Law and an ex-State Minister of Constitutional Affairs)
Dissolution of Parliament
President Gotabaya Rajapaksa exercising his constitutional powers and prerogatives under the 19th Amendment to the Constitution, dissolved Parliament immediately upon it completing four and a half years by a Proclamation on the 2nd of March 2020. Under normal circumstances Parliament stands dissolved upon the expiry of five years. Clearly the intention was to go before the electorate hot on the heels of his own impressive victory and cashing in on the split in the UNP.
In both instances of the dissolution of Parliament, it is incumbent upon the President to fix the date of the poll for the ensuing General Election and to summon the new Parliament to meet on a date not later than three months after the date of such dissolution/proclamation. Accordingly he fixed 25th April for the poll and 14th May for the new Parliament to sit, complying with the three month time frame stipulated in the Constitution.
Unfortunately, the aforementioned legitimate time-frame for the election and summoning of Parliament has been upset by the Covid-19 pandemic. Today, on the 8th of May, we have 724 reported cases and nine deaths. The government appears to be doing its best to overcome the crisis and protect the people.
The growing pandemic has threated the upcoming parliamentary election in several ways. First, it made it practically impossible for the Election Commission to organise the election in the usual way on the date fixed by the President. It has caused the Commission to delay the election until 20th June with no guarantee that the election machinery can be made to function normally even on that date.
A free and fair election must also allow rival political parties and candidates to conduct meetings and campaigns to canvas voters. Under the present situation of curfews and shutdowns this cannot happen. Furthermore, it demands that people have an assurance to exercise their right to vote freely and in accordance with Quarantine regulations and without risking their lives.
The Constitutional Crisis
The Elections Commission is required to publish the date specified by the President as the date when the poll shall be taken by it in terms of section 24(1) of the Parliamentary Elections Act. The Commission cannot vary the date fixed by the President under section 10 of that Act. It is thus clear that the fixing of the date for the holding of the poll by the Elections Commission and the fixing of the date for the new Parliament to sit are both acts solely within the purview of the President. Any change of dates should also be done in a similar fashion.
Article 70 (7) states that: “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 that 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.”
The challenge is to overcome the impediments in accordance with the Constitution so that the people of our country can rest assured that democracy that they have cherished and protected is preserved for our children and future generations. The integrity of President, Prime Minister, the Cabinet of Ministers, the Parliament, the Judiciary and the Election Commission also needs to be preserved. These critically important objectives can be achieved under the rule of law.
A fundamental feature of our Constitution is the Principle of the Separation of Powers, as defined by law. State power is divided and shared among the Legislature (Parliament), the Executive (the President, Prime Minister and the cabinet) and the Judiciary (led by the Supreme Court). These three institutions complement one another and are indispensable to one another.
The opposition parties maintain that the President must get Parliamentary approval to continue spending money from the consolidated fund, and have pledged to support him in Parliament to fight the pandemic and its fall out, giving that assurance in writing.
The very poor and unfavourable public perception of our Parliamentarians and the contempt in which they are held is absolutely no justification to have no Parliament and consequently the people’s representation.
If Parliament does not meet on or before 2nd September 2020, the seed of authoritarianism would have been sown. History tells us that it is a dangerous path to tread.
It can been argued that the President could rescind the Proclamation of the dissolution of Parliament and thereby re-summon the old Parliament, citing section 18 of the Interpretation Ordinance, which allows him to amend vary, rescind or revoke his proclamation..
The President also has the option under Article 129 (1) of the Constitution, as only he can, where “at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may ……… report to the president its opinion thereon”.
Already several applications have been made by opposition parties and civil society groups and individuals challenging the legality of steps taken. The Supreme Court will be called upon to adjudicate on the following ancillary matters that would come up as well.
First, if under Article 70(7) Parliament is reconvened to approve a state of emergency, can it perform other Parliamentary functions such as approval of funds to meet public expenses?
Second, can the Elections Commission announce a date for the poll in the absence of a date for the convening of the new Parliament?
Third, would the non-declaration of such a date, allow the Executive President to arbitrarily delay the summoning of the new Parliament?
Fourth, would the nominations received for an election that is postponed once or more times and/or for a poll where no date has been fixed for the new Parliament to meet, be valid?
Doctrine of Necessity
Some advocate the recourse to the “Doctrine of Necessity”. What it means in simple terms is that the Executive branch of the government can take actions that are not sanctioned by the Constitution or law on the grounds that such action is for the greater good of the public. Although in theory it may sound reasonable, in practice, it is wrought with danger.
The use of the necessity doctrine to justify usurpation of the legislative authority by the executive can be ominous. Where an executive seeks to exercise legislative authority in response to an emergency, the primary issue is not whether the necessity justifies the measures themselves, but whether the emergency justifies a short-circuiting of the legislative process and a change in the existing balance of powers. There are no circumstances, short of the physical inability of the Legislature to convene, which would legitimise this usurpation.
Should the President have recourse to this doctrine, it will be an absolute contradiction in terms, for on the one hand the President is not satisfied that an emergency has arisen and on the other hand, he sees an emergency that demands the invocation of the Doctrine of Necessity.
Acting out of necessity in a personal situation is very different to an institution such as the Head of State doing so. The necessity in such a case cannot be his own or of his government but it must be the necessity of the country and all of its people.
The doctrine of necessity does not apply where the substantive law provides an alternative. The application of the doctrine of necessity is questionable in view of the fact that the doctrine falls short of the principle of legal certainty. The conferment of such unlimited powers on the Executive would be a violation of the rule of law which excludes the existence of arbitrariness. The exercise of powers of government should be conditioned by law and not expediency at the cost of freedom and the rule of law.
This doctrine has been invoked in a few countries that do not inspire much confidence given their history of coups, dictatorships and anti-democratic political cultures.
The Supreme Court can make appropriate interventions in accordance with the Constitution to help preserve the rule of law and democracy. But it lies mainly in the hands of the President to avert this Constitutional impasse. It will not only be in his own interests but in the best interests of the country as well. It`s a time for statesmanship and not politics.