1 October, 2020

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Constitutional Deadlock – The Way Forward 

By Thushara Rajasinghe –

Thushara Rajasinghe

It appears the chaotic disorder caused by the Covid-19 pandemic is now possibly taking Sri Lanka towards an interesting Constitutional deadlock unless the normalcy is restored, allowing the Election Commission to conclude the General Election on or before the 2nd of June 2020.

According to Articles 33(2)( c), and 70 (1) (5) (a) of the Constitution, the President dissolved the 15th Parliament of Sri Lanka by a proclamation dated the 2nd of March 2020. Article 70 (5) (a) requires the President to fix a date for the election of members to the new Parliament and also the date of the first meeting of the new Parliament in the same Proclamation. These two dates must be within the three months after the date of such Proclamation. Accordingly, the President fixed the 25th of April 2020 as the date for the General Election to elect the members to the new Parliament. In the same Proclamation, the President also summoned the new Parliament to meet on the 14th of May 2020. The Election Commission concluded the receiving of the nominations for the General Election on the 19th of March 2020. However, the Covid 19 pandemic had by then entered our shores and started to spread at an alarming rate, forcing the Government to adopt strict and effective measures to contain the spread. As part of such measures, an Islandwide curfew was imposed on the 20th of March 2020, which is still in force throughout the country, with few exceptions.

On the 21st of March 2020, the Election Commission by Gazette Extraordinary No 2167/19 stated the General Election could not be held on the 25th of April 2020 as proclaimed by the President due to the outbreak of Covid 19. Instead of postponing and fixing a new date for the election as required under Section 24 (3) of the Parliamentary Election Act, the Election Commission stated that it would fix the new date for the election after fourteen days from the 30th of April 2020. Meanwhile, the Chairman of the Election Commission had written to the President, informing him to seek the opinion of the Supreme Court regarding the postponement of the General Election. The Secretary to the President then advised the Election Commission to fix a new date, as stated in the Gazette dated the 25th of April 2020, and proceed to the election. The Secretary to the President had also specifically stated that the President found no reason to seek the opinion of the Supreme Court pertaining to this matter.

In the meantime, a section of politicians, predominately from the opposition, claims the President’s power to obtain funds from the Consolidated Funds for public service expenditure pursuant to Article 150 (3) of the Constitution will come to an end on the 30th of April 2020 as the borrowing is reaching its permissible limit. However, the Government disagrees and maintains that the President can obtain funds from the Consolidated Funds until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.

The significant progress made in the battle against Covid 19 has given the Government hope of conducting the General Election and summoning the new Parliament on or before the 2nd of June 2020. In a practical aspect, the battle to contain and eradicate the Covid 19 virus from Sri Lanka may conclude with success within April; however, the chances of successfully concluding the General Election and summoning the new Parliament on or before the 2nd of June 2020 is still remote. The Constitution only allows the President to change the date fixed for the first meeting of the new Parliament by a subsequent proclamation (vide Article 70 (5) (c). However, the new date must be within the three months from the date of Proclamation, which dissolved the Parliament. As a result of these provisions in the Constitution, the President has no constitutional power to postpone the first meeting of the new Parliament beyond a period of three months from the Proclamation, which dissolved the Parliament. Under prevailing circumstances, the President may face an unusual Constitutional Crisis, in that, he may need to postpone the General Election and the summoning of the new Parliament beyond the period of three months, especially if this Covid 19 crisis persists beyond April 2020.

A section of the legal fraternity, academics as well as individual politicians urge to reconvene the 15th Parliament in order to avoid this emerging Constitutional Crisis. Article 70 (7) allows the President to summon the Parliament, which has been dissolved if he is satisfied that an emergency has arisen and the meeting of Parliament is necessary due to that emergency. 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 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.”

In view of Article 70 (7), the President could summon the dissolved Parliament if he is satisfied that the meeting of the Parliament is necessary due to the nature of the emergency, which has arisen after the dissolution of the Parliament. Hence it appears that the purpose of the meeting of the dissolved Parliament under Article 70 (7) is limited only to the issues arising from the emergency. Such a meeting of the dissolved Parliament could deal with the borrowing limits of the President under Article 150 (3) if it is required. It is my view that the power of the President to obtain funds from the Consolidated Fund will not be affected by the meeting of the dissolved Parliament.

The duration of the reconvened Parliament comes to an end with the end of the emergency or the conclusion of the General Election, whichever is earlier. Article 70 (7) does not require the President to fix a new date for the General Election and a new date in which the first meeting of the new Parliament could be held. Hence, the General Election referred to in Article 70 (7) is the General Election fixed by the President in the Proclamation made under Article 70 (5) (a), which dissolved the Parliament. Therefore, it is clear that the Proclamation made under Article 70 (7) does not cancel or affect the operation of Proclamation made under Article 70 (5) (a). Accordingly, by summoning the dissolved Parliament pursuant to Article 70 (7), neither the President nor the Parliament can change the date of the General Election or the date on which the new Parliament is to meet.

Another section of the legal fraternity and academics argue that the President could rescind the Proclamation issued on the 2nd of March 2020. They argue that the President could do so by issuing another proclamation to revoke the Proclamation issued under Article 70 (5) (a). Such a proclamation could then restore the 15th Parliament, which was initially elected by the people till the 1st of September 2020. Hence the 15th Parliament could continue till the 1st of September 2020, during which time, the Government can control and eradicate the Covid 19 virus and conduct the General Election without any hindrances. Professor Hoole, one of the members of the Election Commission, stated in Colombo Telegraph that the President could revoke his Gazette of the 2nd of March and then the Parliament could operate as it did after the Supreme Court declared the 27th of October 2017 dismissal of Parliament by Maithripala Sirisena illegal. He further stated that the Parliament elected on the 17th of August 2015 can go on until five years after its first meeting on the 1st of September 2015. The present situation has no similarity with the constitutional crisis created by Former President Sirisena. The Supreme Court in 2018 SC FR Application 353 found the Proclamation issued by the former President Sirisena dissolving the 15th Parliament on the 9th of November 2018 was null and void ab initio without force or effect in law. Hence, the Proclamation issued by President Sirisena had no effect in law to dissolve the 15th Parliament on the 9th of November 2018. Therefore, one cannot compare the constitutional crisis created by President Sirisena with the present situation.

In pursuant of Article 33 (2) (c ) and 70 (1), the President has the power to summon, prorogue, and dissolve the Parliament by a proclamation. The President is only allowed to issue a proclamation dissolving the Parliament after the expiration of a period of not less than four years and six months from the date of its first meeting. There is no specific provision in the Constitution allowing the President to issue a proclamation to rescind an earlier proclamation which dissolved the Parliament. After reading the Constitution in its entirety, there does not seem to be any provision in the Constitution empowering the President to rescind or revoke a Proclamation issued under Article 70 (5) (a).

Only in two instances the President is allowed to issue a proclamation with summoning the Parliament, which has already been dissolved. The first such instance is under Article 70 (7), which has been discussed above. The second instance is pursuant to Article 155. In both of these two instances, the President can reconvene the dissolved Parliament only for an emergency. The life of the reconvened Parliament comes to an end with the end of the emergency or the conclusion of the General Election, whichever is earlier.

It is clear that the omission of a specific provision allowing the President to revoke the Proclamation issued under Article 70 (5) (a) is based upon the principles of separation of powers and check and balance. The power of the President to dissolve the Parliament is not an unfettered authority. The President is the creation of the Constitution, hence he must act according to the Constitution. The President derives his executive power from the People. Hence, exercise of his executive power must reflect the will of the People. According to Article 4 of the Constitution, the people exercise their legislative power through the Parliament and through referendums. The executive power of the people has a discretionary power to dissolve the Parliament before it completes a full term of five years. However, that power can be exercised after the Parliament has completed four years and six months of its term. Hence, the Proclamation issued by the President, dissolving the Parliament reflects the will of the people. The Constitution explicitly stated the interlude period between the dissolution of the Parliament and the first meeting of the new Parliament must not exceed three months from the dissolution. If an emergency emerges, requiring the meeting of the Parliament during this interlude period, the President could reconvene the dissolved Parliament in order to address the emergency (vide Articles 70 (7) and 155). Therefore, the President does not need to revoke the Proclamation, which dissolved the Parliament in such an emergency. NS Bindra’s Interpretation of Statutes [10th ed. at p. 1281] states that

“In construing a provision of the constitution, resort may be had to the well-recognised rule of construction contained in the maxim “expressio unius est exclusio alterius“, and the expression of one thing in the Constitution may necessarily involve the exclusion of other things not expressed” 

In consequence of the expressed provisions in the Constitution, empowering the President to reconvene the dissolved Parliament in case of an emergency, during the interlude period, one can safely conclude that the Constitution has excluded the necessity of revoking the Proclamation issued under Article 70 (5) (a) in case of an emergency.

Even by reconvening the dissolved Parliament, neither the President nor the Parliament can extend the said interlude period of three months, unless the Parliament adopted an extraordinary step in amending the relevant articles in the Constitution during the reconvened period. In consequence of these reasons, there is no valid legal platform for this proposition of rescinding or revoking the Proclamation, which dissolved the Parliament.

Having concluded that the President has no power under the Constitution to extend the interlude period beyond a period of three months, and also no provisions in the Constitution to revoke the Proclamation issued under Article 70 (5) (a), I now turn into examining the possible options available to the President in order to move forward from this Constitutional Crisis.

In view of the practices and steps adopted by many foreign jurisdictions and the writings of prominent jurists, I find the doctrine of necessity in public law could be invoked in addressing an emergency or a situation in which the Constitution had neither foreseen nor can resolve within its express provisions. The doctrine of necessity is derived from the maxim ‘Salus populi suprema lex esto” which means that the health, welfare, good, salvation, and felicity of the people should be the supreme law.

Let me first briefly examine the application of the doctrine of necessity in other jurisdictions in a constitutional crisis.

Articles 133 and 155 of the Republic Constitution of the Cyprus 1960 had respectively established the Supreme Constitutional Court of the Republic and the High Court of the Republic. The composition of the two apex courts was based upon the bi-communal representation. Accordingly, the Supreme Constitutional Court formed with one judge from the Greek community, one judge from the Turkish community, and a neutral judge, who becomes the President of the Court. The composition of the High Court was one judge again from Greek community, one judge from the Turkish community, and a neutral judge who becomes the President of the Court. These Articles (133 and 155), were un-amendable provisions. However, the functions of the two courts came to cease during the conflict of 1964. The neutral judges and the Turkish judges withdrew from the courts, leaving the two apex courts in the country on the brink of collapse. The House of Representative, in the absence of Turkish members, adopted the law of Administrative of Justice (Miscellaneous Provisions) and created the Supreme Court by merging the Supreme Constitutional Court and the High Court. The legality of the Supreme Court was challenged in The Attorney General of the Republic v. Mustafa Ibrahim, 1964, CLR 195. The Court found that the establishment of the Supreme Court was constitutional based on the doctrine of necessity. Having analyzed the laws of France, Italy, Germany, England and Greece pertaining to the doctrine of necessity, Vassiliades, J in Mustafa Ibrahim found that;

“In the light of the principles of the law of necessity as applied in other countries and having regard to the provisions of the Constitution of the Republic of Cyprus (including the provisions of Articles 179, 182 and 183), I interpret our Constitution to include the doctrine of necessity in exceptional circumstances, which is an implied exception to particular provisions of the Constitution; and this in order to ensure the very existence of the State. The following prerequisites must be satisfied before this doctrine may become applicable

a) an imperative and inevitable necessity or exceptional circumstances

b) no other remedy to apply

c) the measure taken must be proportionate to the necessity; and

d) it must be of a temporary character limited to the duration of the exceptional circumstances.

Vassiliades J found the doctrine of necessity is neither an extraconstitutional nor a supra constitutional principle; it is instead a constitutional principle, which indirectly forms a part of Article 179 of the Constitution of the Republic of Cyprus.

The Fiji Court of Appeal in Republic of Fiji Islands v Prasad [2001] FJCA 2; Abu0078.2000s (the 1st of March 2001) found the declaration of emergency by the President without the advice of the Prime Minister was legal during the parliamentary hostage crisis in 2000 based on the doctrine of necessity. A group of people invaded the Parliament and held the Prime Minister and the members of the Government as hostages for nearly fifty days. On the day of the invasion, the President declared an emergency without the advice of the Prime Minister, who was held in Parliament as a hostage.

Haynes, P. in Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35, 88 in the Court of Appeal of Grenada expounded the conditions which need to adopt the doctrine of necessity,

“I would lay down the requisite conditions to be that:

a) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;

b) there must be no other course of action reasonably available;

c) any such action must be reasonably necessary in the interest of peace, order, and good Government; but it must not do more than is necessary or legislate beyond that;

d) it must not impair the just rights of citizens under the Constitution;

c) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.

In view of the above discussed judicial precedents, it appears that many countries have acknowledged that the State has the power and duty to take exceptional measures in order to save the existence of the State and the people in an exceptional circumstance which the Constitution had neither foreseen nor can resolve within its express provisions.

Article 33 has stipulated the powers, duties, and functions of the President. Among such powers and duties Article 33 (2) (h) has outlined that;

“to do all such acts and things, not inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage the President is authorized or required to do”

Accordingly, it is my view that the President could take steps and act on the basis of the doctrine of necessity in order to avoid the Constitutional deadlock extending the interlude period between the dissolution of the Parliament and the date of the first meeting of the new Parliament beyond a period of three months. The President could adopt few options in this regard. The first option is to revoke the Proclamation issued on the 2nd of March 2020, dissolving the 15th Parliament. In doing that, the President could restore the 15th Parliament, allowing it to continue till the 1st of September 2020. By doing this, the President could avoid the deadline of the 2nd of June 2020. The second option is to issue another proclamation fixing a new date for the General Election and a new date for the first meeting of the new Parliament after assessing the progress of the battle against Covid 19. That date might go beyond the 2nd of June 2020, which can be justified on the doctrine of necessity. The second option still allows the President to reconvene the dissolved Parliament if he finds it necessary to do so pursuant to Article 70 (7). We are heading towards an interesting period and the steps the President will take in this regard will have a significant impact on the development of Constitutional Laws in our jurisdiction.

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Latest comments

  • 8
    2

    The doctrine of necessity could be invoked only when there is absolutely no alternative. But here President has been given the option to recall the parliament. It is an absurd proposition when there is a provision clearly says during an emergency President can re-summon the parliament. It is the political will that needs at this moment. The Opposition has also given their support to the Government if in case President needs bipartisan support to steer the country and to avoid a constitutional conundrum. So what is the purpose of talking about Doctrine of Necessity. The Author himself says President has power to summon parliament.

    • 2
      0

      “The Opposition has also given their support to the Government if in case President needs bipartisan support to steer the country and to avoid a constitutional conundrum.”

      Yes, sure the 8th graders ready to have accept their pensionable job back. But author argues the dissolved parliament can relive only for three months (practically – June 2nd). If you want more time, you need new Swiss Pastors to infect Jaffna, Mannar, Batticaloa, Puttalam, Akurana….. That is the way to keep the emergency beyond three months. The luckiest thing here is election cannot fall before the Corona. So the “term of parliament” will be the first one to interrupt. Remember, by that time we can have had a referendum to extend the parliament beyond five years. Donkey trading is possible now (this time), but the King is scared of Hakeem. Last time he wanted 500 million. This time it will be one billion. This time no one can go to Saudi Arabia, so Hakeem, Rishard and others have to have their meeting in Dalada Maligawa with Kandy Ayatollahs. .

  • 4
    0

    Congratulate the author for a review needed for the time.
    Necessity as he claims and quotes in (b) there musty be o course of action reasonably available. The author himself points out to the revocation of the dissolved parliament which has mandate until september 1, 2020. If a course of action is available then the option with the President remains, to adhere to it.

  • 9
    0

    The writer has taken the trouble to meticulously outline all the legal niceties involved in making the right decisions about summoning the parliament and fixing a date for the forthcoming general elections. He seems to be a bright and earnest jurist concerned about the ramifications the decisions would have on handling the current pandemic and on the country’s democracy and constitutional development. But I doubt if the President would pay any attention to any such professional advice. Nah, that would be like pouring water on a buffalo. He’s more likely to consult his tribal leaders in uniform: the monks, the military and Malcolm.

  • 2
    3

    The legal jargon is discussed what’s important is life. If no life no legal system. Accept the ruling party all others are at a weak in winning the votes. When the government wanted quarantine centers it orded the SLA and gave 48 hours and they did it. Saved lifes. When the bureaucracy met in Colombo for food distribution last Friday nothing till now. So Gota is scoring well. So put 2 & 2 together and see.

    • 5
      0

      SRF
      Life must go on, and does go on. But it is important that the country is always guided by Law.
      By violating rules we create unnecessary problems.
      Here is a proposal for a way out of the crisis which is worth considering by the top legal authorities and the President as there is no Parliament in operation.
      Let us not be tempted to sleepwalk into a military rule.

  • 4
    0

    We have “True Pundits” and “Puss Pundits” who are giving opinion all the time in Sri Lanka. Even the President himself has no clue, not even re: the rules laid down for the management of the Armed Forces, although he claims to be the champion of the Armed Forces. We have seen this in Yoshitha Rajapakse’s wedding uniform and how he was promoted even after he was found fault and how he was pardoned.

    What ever action the President takes, there will be groups who will not be satisfied. Rajapakse brothers will try to hoodwink the people with the slogan ” protecting mawbima and Sinhala Baudha jathiya” and will try to do what is advantages to their victory. This will push UNP, JVP, and SJB to go to Supreme Court.

    Why not UNP/JVP/SJB go to Supreme Court now and ask the views of the courts?

  • 0
    4

    The last time, during the October Revolution in 2018, Parliament, and some Human rights activists giot together avd via the Judiciary screwed up the parliament. This time, it will be the same. May be what is on coming is AUGUST revolution 2020. Britan does not have a constitution, the Pri Minister is resting in his rural cottage. But, the country is running. For us worship the constitution. If not everything goes Haywire. Ohhhh LORD.
    What does the Civil Society aka Open society says.

  • 0
    0

    “ expressio unius est exclusio alterius “
    “Anything not mentioned” is not as blindly as it sounds, here. What are meant above are mutually exclusive matters.

    There is no point in here we fight over the verdict on Merchant of Venice. Patricia’s interpretation was Antonio has to give one pound only irrelevant of what Shylock, the lender supposed to receive. Blood spilling and weight going more or less were not mentioned, so those could not take place. Suppose Shylock cut one pound and put bandage on Antonio’s thigh, but the blood kept leaking, then whose fault was it? Antonio was bleeding or Shylock bled Antonio? As I don’t eat meat, I do not know selling meat with any blood is considered underweight, & illegal. But I know it is allowed to make one pound bread out of ¾ lb. of flour, as long as if you can make ¼lb. water to stay in the bread. Further if your bread had weighed 16 oz in the morning and in the evening it was weighing only 14oz, it is also ok. Even if 2 oz water evaporated, it is still under Lankawe law one pound bread. Though when you go to store you didn’t think to buy water, but only bread, it is ok to sell a 14oz bread as one pound, containing 12oz of flour, in Lankawe. That is called, like in New York they have baker’s dozen (13 articles is a baker’s dozen), 14 oz. is a bakers’ pound in Lankawe. Patricia demanded from Shylock to cut exactly one pound from Antonio in 16th century. The British Board of Trade defined the “exact “Libra pound” in 1898, possibly after stunned by Patricia’s argument. (As it was Antonio’s responsibility to tender or deliver the loan back to Shylock, or, of cause, the equitant value flesh, it was Antonio’s responsibility have had cut it from his thigh.)

  • 0
    0

    As we said “Anything not mentioned” meant above are mutually exclusive matters. The ambiguity about said or not said of complementary needs and supplements products will always exist &request a judge to make a decision). That is why, unlike Shylock, in all trade contracts, lawyers try to mention as much as possible. If a transport manager is authorized to buy a sprinter truck to deliver goods, he gets, by virtue of the word “Deliver”, money for gas and repair too. If the gas money directly goes to driver, bypassing manager (he losses managing authority), it may have to be mentioned explicitly. So normally, in trade contracts, the not mentioned gas money does get included, impliedly. Because it explicitly said “sprinter truck”, a “Benz car” for transport manager is excluded. They are mutually exclusive.
    For example if a commander tells the soldier to shoot, the commander cannot argue that he told only to shoot, but didn’t say to kill too. Then if you ask the surgeon to take out the bullet, then you cannot argue why he did save the victim, you only wanted the bullet to keep as a souvenir. You can’t have the cake and eat it too. Further, without president explicitly proclaims again that the danger has passed over and he reactivates the proclamation dissolving parliament, it will not go away itself. If president refuses to recognize the passing of the emergency period, then it is a matter for the court to decide if precedent has to do it or not. May be after one month, parliament may have to extend the emergency by vote. Otherwise emergency declaration is invalid.
    The emergency need not to come always only after president proclaims the election and EC Chair closes the candidates’ applications. It can happen (1) while the election is on or (2) election was over, but the first day of the new parliament has not come yet. On the first instance, President may stop the election in the middle and reconvene the earlier parliament.

  • 2
    1

    But if after election, it has to be president’s best judgment which parliament he has to convene. It can be contested in court saying that both parliaments, old and new, are separate from Executive so they both have their legitimacy to be activated, beyond the president’s authority to activate one of them. But as New King in October 2018, King can activate both and work with two parliaments too. That too is allowed in Lankawe.
    In neither case the Parliament will go shut itself after the emergency, without President doing it, like a garage door shuts off itself after the car is stolen.
    “4(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People. “
    Article 4 says President is the executive. Period! Nowhere else it is telling “That’s all his authority” or “this is only what he can do”. So the president has no limitation in his authority as it is nowhere mentioned. Here it is talking about his authority’s start, but no end. So inverse of “ expressio unius est exclusio alterius “ applies to his unlimited power. Basically Lankawe President can execute any matter or anybody, like Lasantha Eknaligoda or LTTEyers, whoever comes in front….
    Examples:
    1). Cypres Case: The case was cat had drunk the milk. Who is the judge?; the cat who drank the milk. CJ Cat read “ I interpret our Constitution to include the doctrine of necessity in exceptional circumstances,” So why the cat drank the milk?; out of necessity. It was Hungry! Classic Rapist Army’s Sinhala Jury only verdict.
    2). Fiji case; ‘the President declared an emergency without the advice of the Prime Minister,
    Deva was asked if he want to vote to extend the emergency and extend the parliament to September and get the full pension. He said “I owe that duty to my people”!
    Lankawe and its stupid constitution. It is so crazy. What a hell they all are!

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