By declaring June 20th for the 2020 parliamentary polls, the Elections Commission appears to have set the stage for the courts to intervene in order to resolve a knotty constitutional question about the life of the current Parliament.

M.A Sumanthiran

Senior lawyers like former TNA MP M.A. Sumanthiran PC are arguing that the new election date, being three months after parliament was dissolved on March 2, 2020, renders the presidential proclamation dissolving Parliament invalid.

Overruling Government preferences for a May election, the Elections Commission yesterday declared that the parliamentary election would be held on 20 June.

Sumanthiran PC explained that while there was no prohibition on the Commission to set a date of their choice according the Parliamentary Elections Act, there was clear constitutional imposition upon the President that he can no longer fulfill due to polls being delayed beyond June 2, as a result of COVID-19.

Article 70 of the Constitution imposes a strict condition on the President when he chooses to dissolve Parliament by proclamation 4.5 years into its term, Sumanthiran PC told the talk show Face the Nation on Monday night.

He explained that the President could dissolve Parliament by proclamation but the same constitutional provision that gives him the power to do so, mandates or compels him to fix a date for the new Parliament to meet no later than three months after dissolution.

On June 2, 2020 that constitutionally mandated deadline expires.

“If the three month condition cannot be met for whatever reason, the President’s proclamation becomes invalid because the President is only allowed to dissolve parliament under that strict condition because the country can function without a Parliament for no more than 3 months,” the former TNA MP from Jaffna said on the Monday night talk show.

He added that Article 70 of the Constitution permits the President to change the election date if necessary through another proclamation, but even date that must adhere strictly to the three months condition for Parliament to meet after being dissolved.

The new election date set by the Commission therefore renders President Gotabaya Rajapaksa’s March 2 proclamation ineffective said Sumanthiran PC.

Pro Government lawyers however counter-argue that the corona virus battle is an extraordinary situation that the constitution does not make provision for. These lawyers are arguing for the adoption of the “doctrine of necessity” to deal with the looming constitutional deadlock, although they stop short of advocating for the constitutional provisions pertaining to the question of the life of parliament be suspended while the President deals with the pandemic.

Others like pro-Rajapaksa monk Athuraliye Rathana Thero are calling for elections to be put off by six months. During that time, Rathana Thero argues the president and the caretaker government must rule through an executive governance council without a parliament.

Constitutional experts warn this would be a slippery slope to establishing executive rule or a dictatorship in Sri Lanka on the back of the pandemic.

Colombo Telegraph learns that it was due to this constitutional condition that Parliament must meet within three months that on April 1 when it realized elections could not be held in May, the Elections Commission urged President Gotabaya Rajapaksa to seek an opinion from the Supreme Court.

However the President, replying through his Secretary P.B. Jayasundera, retorted that there was no need to seek an opinion from the highest court, since the Government saw no reason why the election could not be held by the end of May 2020, paving the way for Parliament to sit by June 2.

Now by declaring elections on June 20, the Elections Commission will force petitioners to go to court to resolve the issue. It has by doing so, absolved itself of the responsibility of dealing with a knotty and controversial question that could set the country on a grave constitutional collision course.

The 19th Amendment, Sumanthiran pointed out during the talk show, permitted any citizen of the Republic to petition the Supreme Court to challenge an action or inaction by the President. In this case, a legal challenge could be mounted on the basis that President Rajapaksa is not acting to rescind his gazette dissolving Parliament. Responding to a question, Sumanthiran explained that a citizen could file a petition electronically and the courts could decide to hear the matter based on how urgent it might be.
Courts are presently closed as the country contends with preventing the spread of the corona virus.

Meanwhile President Gotabaya Rajapaksa in a pre-recorded interview aired across the networks on Monday night, completely ruled out the idea of reconvening the old Parliament.