By Tatiyajith Karunaratne –
Recently there have been many arguments on printed and electronic media on the operation of Sec. 24 (3) of the Parliamentary Elections Act No 1 of 1981 of Sri Lanka (“PEA”). It is argued by many that the said section permits the Election Commission (“EC”) to postpone the election “only in one particular electoral district” and as such, section 24 (3) is not applicable to the conduct of a “General Election” in multiple electoral districts.
As this has led to many argument I proceed to interpret the relevant provisions of the Constitution and the PEA objectively without being obscured by political bias.
Sec. 24(3) of the PEA reads as follows;
“Where due to any emergency or unforeseen circumstances the poll for the election in any electoral district cannot be taken on the day specified in the notice relating to the election published under subsection (1), the Commissioner may, by Order published in the Gazette, appoint another day for the taking of such poll, and such other day shall not be earlier than the fourteenth day after the publication of the Order in the Gazette”. (emphasis added)
It appears that the words “any electoral district” has been misinterpreted to say that section 24(3) applies only to “one electoral district” and therefore has no application to the conduct of a General Election. A lay person forming that view after a literal reading of the above section is understandable. However, I am truly perplexed having seen the same argument being advanced by persons who are well versed in the field of Law. I respectfully disagree with that view.
Those who interpret Sec. 24(3) of the PEA in such a restrictive manner do so by overlooking Sec. 24(1) of the same Act. Sec. 24(3) should not be considered in isolation and must be read in conjunction with Sec. 24(1) to understand the purposive meaning of those sections.
Sec. 24(1) of the PEA is reproduced below:
1. Upon the receipt of a report under Section 22 in respect of an electoral district the Commissioner shall publish a notice in the Gazette specifying
a) the electoral district in which the election is contested;
b) the names of the candidates in order of priority as set out in the nomination paper of each recognized political party and independent group for election as Members of that electoral district and the approved symbol allotted to such party or group and in the case of an independent group the words ”Independent Group” and the distinguishing number, if any;
c) the situation of the polling station or polling stations for each of the polling districts in that electoral district and the particular polling stations, if any, reserved for female voters.
2. Where due to any emergency it is necessary that the situation of any polling station should be different from that specified in a notice published under subsection (1) the Commissioner may cause the situation of that station to be altered in such manner as he may, in his absolute discretion, determine.
As can be seen from the above, Sec. 24(1) throughout refers to a “single electoral district”. If the same literal/restrictive interpretation of Sec. 24(3) is applied to Sec. 24(1), the power of EC to conduct elections will be restricted only to “one electoral district”. If that be the case, the EC will never be able to hold a General Election in multiple districts. When interpreting a statute such as PEA, a purposive approach has to be taken. Literal interpretation of these sections will lead to absurdity and will defeat the purpose for which those sections have been enacted.
Section 24 of the PEA has been carefully drafted in compliance with the principles of legal drafting with intent to cover a General Election as well as By-Elections. It is a rule of statutory construction that singular includes plural and vice-versa. Therefore one has to clearly understand that Sec. 24 applies to “one, several or all twenty two electoral districts” depending on the nature of the election i.e. whether it is a General Election or a By-Election.
Sec 24 of the PEA operates on the basis that a General Election encapsulate twenty two separate elections held separately in twenty two electoral districts. When one examines the two Gazette notifications published by the EC, it is evident that the EC has listed all twenty two electoral districts in the schedule to those Gazettes which supports my argument. If a restrictive interpretation is applied to Sec. 24 then the EC will not be able to list all 22 electoral districts in the same Gazette notification.
It is undisputed that the Constitution is the Supreme Law of the land and that it prevails over any other statute which contravenes the provisions of the Constitution. However, when the Constitution is silent or does not stipulate to the contrary, actions taken following the procedure laid down by other legislation enacted by the Parliament do not render those actions illegal.
The operation of the provisions of the Constitution and the PEA on the conduct of elections should be clearly understood. Whilst the Constitution dictates to the President to commence the process of the General Election by issuing the necessary Proclamation, the PEA stipulates the procedural aspect of the election. Therefore, the EC has to follow the procedure laid down in the PEA to conduct elections as the Constitution is silent on the procedural aspect of elections.
Article 70(5) of the Constitution mandates the President to nominate “a date or dates” for the election and summon the Parliament to meet on a date not later than three months after the date of such Proclamation.
Article 70(5) reads;
“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. (emphasis added)”.
It is evident that the use of the word “shall” in the above Article makes it mandatory for the President to specify two dates i.e the date for elections and a date for the new Parliament to meet. The said Article 70(5) does not stipulate that the election “must be held” on the date nominated by the President or that the “new Parliament must meet” on the date specified in the Proclamation. If that was the case, it would have been mandatory for the EC to conduct the election “only on the date specified” in the President’s Proclamation and would enable the new Parliament to meet “only on the date specified” by the President in that Proclamation.
The purpose behind the requirement for the President to nominate the date for the elections and date for the for the Parliament to meet is to prevent the country from moving towards a dictatorial governance undermining the Legislature. This is in keeping with the doctrine of Separation of Powers on which the Constitution is based.
However, with the dissolution and initiating of the process of elections, President’s role with regard to the elections comes to an end. Then the baton is passed on to the EC and it becomes the task of the EC to conduct the elections as expeditiously as possible in the Public Interest.
The procedural aspect of conducting the election is stipulated by the PEA and not by the Constitution. Therefore, it is incorrect to state that the steps taken by the EC under the PEA to conduct the elections violates the Constitutional provisions.
it is pertinent to examine the following questions raised by some who argue that the EC is in violation of the Constitution and the PEA.
1. Have unforeseen circumstances arisen after the President’s Proclamation dated 2nd March enabling the Commission to act under sec 24(3) of the Act?
Some argue that the EC has no basis to act under sec. 24(3) on the basis coronavirus as the said threat was very much there when EC commenced action in relation to elections. They argue that as such coronavirus cannot be considered as an unforeseen circumstance envisaged by sec. 24(3) of PEA.
The WHO declared coronavirus as a global pandemic only on 11 March 2020. On 10 March a 52 year old Sri Lankan tour guide working with a group of Italians was tested positive for COVID-19. Therefore the President’s Proclamation dated 2 March 2020 dissolving the Parliament predates the declaration of COVID-19 as a pandemic by the WHO. Accordingly, at the time of the President’s Proclamation the coronavirus had not escalated in the country to such an extent that holding elections was not possible.
Situation in relation to coronavirus changed rapidly. It still keeps on changing. Therefore, the EC has to take decisions as the prevailing situation demands. EC has been confronted with new challenges due to the COVID-19 situation and will have to adopt accordingly. Therefore, there is no merit in the argument that the EC does not have a basis to resort to Sec. 24(3) of the PEA.
The critical question is whether at the time the EC took the decision to act under Sec. 24(3), there was a situation which justified the postponement of the elections. If the answer is in the affirmative it cannot be said that the action by the EC contravenes the PEA.
2. Does Article 70(7) prevent the EC from resorting to sec 24(3)?
It is argued that the fact the President has not reconvened the Parliament acting under Article 70(7) of the Constitution indicates that the President has not acknowledged that an emergency has arisen. It is further argued that accordingly there is no basis for the EC to determine that an emergency has arisen.
Firstly it is immaterial for the EC to consider whether the President considers an emergency has arisen or not as EC functions independent of the President.
Article 70(7) of the Constitution stipulates that if at any time after the dissolution of Parliament, the President is satisfied that an “emergency” has arisen of a such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved, and such Parliament shall stand dissolved upon the termination of the “emergency” or the conclusion of the General Election, whichever is earlier (emphasis added).
It is important to note that the word “may” clearly indicates that Article 70 (7) does not make it mandatory but it is discretionary for the President to summon the dissolved Parliament. The President has to be satisfied that;
(a) an emergency has arisen; and
(b) that earlier meeting of the Parliament is necessary.
Even if the President is satisfied that an emergency has arisen, but is not satisfied that an early meeting of the Parliament is necessary then he is not bound to summon the Parliament under Article 70 (7). It could very well be because the President is of the opinion that the existing laws are more than sufficient to cater to the current crisis and enactment of new laws are not required. Therefore non summoning of the dissolved Parliament by the President does not necessarily lead to the conclusion that the President does not consider that an emergency situation has arisen.
3. Has the EC usurped a constitutional power vested in the President in postponing the General Elections under sec.24(3) of the Act when the EC is only empowered to take action in relation to one electoral district?
As argued previously, Section 24 of the PEA makes reference to “one electoral district”. However, a purposive interpretation of the said section makes it clear that the EC can act in respect of all 22 electoral districts. Therefore the argument that the EC has usurped the power of the President when it acts under Sec. 24(3) of the PEA is not valid in law.
4. Having changed the date of General Election to 20th June does the EC intend to summon the new Parliament?
PEA read in conjunction with Section 18 of the Interpretation Ordinance makes it clear that the EC is empowered to change the date of election. Whilst holding elections remains the responsibility of the EC, in terms of Article 33(2)(C) read with Article 70 of the Constitution, summoning the Parliament remains the function of the President. The law does not prevent the President from summoning the newly elected Parliament acting under the said Articles once the election is conducted and a new Parliament is elected.
5. Will the Proclamation issued by the President on 2nd March lapse on the expiration of three months, if the new Parliament has not met by 2nd June?
As discussed above, Article 70(5) does not make it mandatory that the new Parliament meets before the expiry of three months from the date of the Proclamation of the President. The requirement under the said Article is for the President to only nominate a date for the new Parliament to meet. With nomination of that date the President has fulfilled his constitutional obligations.
What if the new Parliament is prevented from meeting due to reasons beyond anyone’s control due to a natural disaster such as severe flooding or a Tsunami?
If the Parliament is unable to meet on the date specified by the President due to such unforeseen situation, all actions taken up to that point in time are not rendered invalid and will not require the recommencement of the whole process.
The President has dissolved the Parliament in terms of Article 70 of the Constitution after it has completed a term of four years and six months. Therefore, the President has lawfully dissolved the Parliament.
Arguments have been mounted to the effect that if the new Parliament cannot be convened within three months from the date of the Proclamation of the President, it will lead to a violation of the fundamental rights of people and undermines the sovereignty of people and the rule of law.
A claim for breach of a fundamental right arise from an executive action. In this instance the executive action is holding of elections. The EC is tasked with carrying out the said executive action. The EC has commenced the process and has already fixed a date for the elections. If the EC delays holding the elections unreasonably it may give rise to a valid argument that it leads to a violation of a fundamental right of the registered voters. However, there is no provision in the Constitution which stipulates that reconvening the Parliament before the expiry of three months from the date of dissolution is mandatory. Whilst the executive should aim to summon the new Parliament as soon as possible, it is hard to imagine how the failure to do so due to reasons beyond anyone’s control can be viewed as a breach of a fundamental right of a voter.
Those who call for the summoning of the dissolved Parliament should explain whether there is any need for the Parliament to meet. This is a time for action by the health authorities and other connected agencies which come under the executive arm of the government. The need for reconvening the Parliament will only arise if new laws are needed to be introduced to curb the situation. If there is no such requirement then it will not be mandatory for the President to summon the Parliament.
*Tatiyajith Karunaratne (LL.M Melb.) Barrister & Solicitor, Attorney-at-Law – Former Deputy Solicitor General of the Attorney General’s Department of Sri Lanka, Former Visiting Lecturer in Constitutional Law at the Sri Lanka Law College – Currently a Crown Prosecutor in Australia.