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.