By Savitri Goonesekere –

The coronavirus pandemic has impacted the lives of people in Sri Lanka and across the globe. The President and the Minister of Health have given leadership in responding to this grave public health crisis. Their policy and programming initiatives have been supported by dedicated medical professionals and health workers in the public health system, giving other citizens with different health problems the opportunity to access private hospitals. Sri Lanka also initiated from the middle of March, an intensive programme of identifying Covid 19 cases, contact tracing, and isolation, considered the best response in dealing with this pandemic. Testing has been added as a major initiative in recent weeks, again following protocols considered vital in preventing the spread of the disease. This is an impressive record of performance. It is a credit to our public health system, and the political leadership given in coordinating a response to the pandemic, with medical professionals and the public health system.

However unfortunately, pressure has been building in recent weeks, to “open up” the country. This is largely related to the concern with holding the Parliamentary elections on a postponed date of  20^th June 2020.

Parliamentary Elections 2020: the Sequence of Events

The original date for Parliamentary elections was 25th April 2020, the date set by the President’s Proclamation (issued by Gazette Notice of 2^nd March 2020), dissolving Parliament. Section 10 (1) (b) of the Elections Act (1981) places the responsibility on the President to set the “date on which the poll is taken” in every Proclamation dissolving Parliament. This provision restates the President’s responsibility under Article 70 (5) (a) and (b) of the Constitution, to set a date for the Parliamentary election, which also must not be later than three months after the dissolution of Parliament. This is because the new Parliament must meet not later than three months after the dissolution of the former Parliament. The details of these Constitutional provisions will be discussed later.

Section 24 (1) (c) of the Elections Act indicates that when the Election Commission publishes a Gazette Notice specifying the date of the poll for the Parliamentary election, it must “specify the date of the poll being the date specified (by the President) under Section 10,” i.e. Section 10 (1) (b).  According to these provisions it is the President’s act of setting the date of the Parliamentary election by his Proclamation dissolving Parliament that enables the Commission to start making arrangements to conduct the poll. The Commission’s responsibility in this regard arises only after the President has set the date under Section 10 (1) (b).  The President’s Proclamation dissolving Parliament, and the date set by him for the poll for Parliamentary elections are both clearly connected.

The Government introduced curfews and lock downs in mid March in response to the Covid-19 pandemic. When it appeared that elections could not be held on 25th April, (the date set by the President in his Proclamation), the Election Commission surprisingly issued a Gazette Notice on 21^st March 2020 stating that the poll could not be held on that date, and also that they would set a later date for the poll. This Gazette Notice of the Commission was in conflict with Section 10 (1) (b) and Section 24 (1) (c) of the Election Act referred to in the earlier paragraph.  The Election Commission was therefore acting outside the powers given to them by the Elections Act in stating that it would set a later date for the poll. The Gazette notice was also in conflict with the President’s responsibilities under the Constitution as outlined in Article 70(5) (a) and (b) cited above. 

However, the Commission subsequently wrote to the President on 31^st March 2020, seeking clarification on the date of the poll for the Parliamentary election. It had become clear that the poll could not be held on the 25th April 2020, and therefore that the new Parliament would not be able to meet on the 14^th May 2020, within the three month period specified by Articles 70 (5) (a) and (b) of the Constitution, and in the Presidential Proclamation.

The Secretary to the President replied to this letter, stating that the responsibility for setting a new date was with the Elections Commission, and NOT the President. The letter referred to the Commission’s responsibility to do so under Section 24 (3) of the Elections Act. It appears that it was in response to this letter from the Secretary to the President, that the Commission set the new date of the poll as 20 June 2020 by Gazette Notification No. 2172/3 of 20^th April 2020. This Gazette Notification refers to Section 24(3) of the Elections Act, apparently accepting the interpretation of their powers given in the letter of the Secretary to the President.

 It is useful in these circumstances to examine the provisions in the Constitution 1978 and the Elections Act 1981 that deal with this matter.

Elections Act 1981 and the Postponement of a Parliamentary Election

Despite the provisions referred to above on keeping to the date stated in the President’s Proclamation dissolving Parliament, there are provisions in the  Elections Act which relate to postponing a poll in the event of any emergency.  Section 24 (3) referred to in the Commission’s Gazette Notification of 20^th April 2020, justifying the setting of a new date for the Parliamentary elections, says this: “where due to any emergency or unforeseen circumstances” the poll for the election in any ELECTORAL DISTRICT cannot be taken on the date specified in the Commission’s Gazette Notification (and conforming with the President’s Proclamation), the Commission may by Gazette notification “appoint another day for the taking of SUCH POLL” (i.e poll for THAT electoral district).   Section 24 (3) clearly covers a case where the Commission cannot hold the poll on the date specified in the President’s proclamation due to an emergency, such as a natural disaster or a breakdown of law and order, in an identified electoral district.  This will be a special measure taken in respect of that district, in a situation where polls can be held in other districts on the specified date.  This provision on a postponement of a poll in a particular ELECTORAL DISTRICT is connected to a general provision in Section 113 of the Act.  

According to this Section 113, after the President has fixed the date of an election on dissolution of Parliament, he has a special power to order an election on another date by Gazette Notification “in any electoral district where owing to any cause no election has been held in pursuance of his order.”  Section 113 refers again only to the change of a date in a particular electoral district.   The section envisages that this is done in circumstances where the elections are held in other districts in conformity with his Proclamation dissolving Parliament.

Both these provisions (Section 24 (3) and Section 113), clearly contemplate a change in the polling date in a particular electoral district because of an emergency or unforeseen circumstances. The phrase “electoral district” cannot be  interpreted as a reference to postponement of the entire  poll in a  Parliamentary election  after dissolution of Parliament.  Neither Section contemplates a situation where the polls for a Parliamentary election are held in all districts in the country at different times. Staggering elections in that way is not contemplated by the language of Section 24 (3) and Section 113 of the Elections Act.

Consequently:

1. The date for a Parliamentary election after dissolution has to be the date set in the President’s Proclamation.  It cannot be later than three months of the date of dissolution, as the new Parliament must be summoned by the President within three months of dissolution (Constitution Article 70 (5) (a) and (b) and Section 10 (1) (b) of the Elections Act). The Constitution and the Elections Act reinforce each other and cannot be delinked.

2. The Election Commission has no power under Section 24 (3) of the Elections Act to set the date of a Parliamentary election after the dissolution of Parliament.  

3. Section 24(3) and Section 113 of the Elections Act on the postponement of an election in a particular electoral district in an emergency or unforeseen circumstances, do not cover the postponement of a Parliamentary election.

The Constitutional Provisions

Though the Elections Act does not contain provisions to cover postponement of a Parliamentary election across the country by the President after the dissolution of Parliament, or by the Elections Commission, in the event of an emergency, the Constitution of 1978 had already provided for such a situation.

As stated earlier, the Constitution has placed on the President the duty to fix a date of a Parliamentary election when Parliament is dissolved (Articles 70 (5) (a) and 70 (5) (b). Article 70 (5) (a) reads as follows: “a proclamation dissolving Parliament (by the President) shall fix a date for the election of members of Parliament and summon the new Parliament on a date not later than three months after the date of such Proclamation.”  The obligation to conform to this procedure is placed clearly on the President by Article 70 (5) (b), which states “Upon the dissolution of Parliament ….. the President shall forthwith by Proclamation fix a date or dates (for the election) and shall summon the new Parliament to meet on a date not later than three months after the date of the Proclamation.”  It must be therefore be noted that these Constitutional provisions which predated the Elections Act of 1981 set out the President’s responsibilities, and it is this legal position that was reinforced in Section 10 (1) (b) and Section 24 (1) (c) of the Elections Act 1981. 

Another Subsection of Article 70 of the Constitution provides for a situation where, an emergency may require the President to reconvene a dissolved Parliament.  This may or may not also require a change of the date for the General Election  and the summoning of the new Parliament.  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 which ever is earlier.”  

Therefore:

1. Article 70 (7) gives the President the discretion to change the date set for the General Election and the summoning of the new Parliament in his Proclamation on the dissolution of Parliament, only in the event of a grave national emergency.   

2. When he exercises this power to act under Article 70 (7), then he must reconvene the dissolved Parliament. 

3. When the emergency ends, unless a General Election can be held on the date specified in the original Proclamation, he must, by another Proclamation, set a new date for the General Election and the summoning of a new Parliament.  

4. Only the President can the change the date of the General Election and the date for summoning a new Parliament in the original Proclamation, and he can only do so by acting under Article 70 (7).   

It is also evident that the concept of a “General Election,” the term in the Constitution, is quite different from the concept of postponement of the “poll in any electoral district due to an emergency” by the Commission under the Section 24 (3) of the Elections Act, or the President ordering “the holding of an election in an electoral district” under Section 113 of that Act.

It can be argued that it is because the President is empowered by the Constitution  to use Article 70 (7) and re-summon a dissolved Parliament in the event of an emergency, that the Elections Act 1981 did not deal with the postponement of the whole General Election in the country, because of such emergency or unforeseen circumstances.

Conclusions

Both the Constitution and the Elections Act clearly place the responsibility for setting the date of the poll after dissolution of Parliament on the President and no one else.  He must also conform to the Constitutional obligation to summon the new Parliament not later than three months after dissolution. If he wishes to go beyond the date set in his Proclamation dissolving Parliament, he must use Article 70 (7) to postpone the election.  

It is only by re-summoning a dissolved Parliament because of an emergency under Article 70 (7), that the President becomes empowered to issue a new Proclamation setting a new date for the Parliamentary general election, which could not be held due to a national emergency.  This Covid19 pandemic seems to be an occasion for the exercise of the President’s powers under Article 70 (7). 

The exercise of Presidential powers under Article 70 (7) in an emergency, must be understood in the context of responsibilities of governance of two important institutions – i.e. Parliament and the President. Article 4 (a) and (b) of the Constitution clarify the balance of Presidential and Parliamentary rights and responsibilities of two institutions which reflect the sovereignty of the People.  Article 33A in particular states that the President has an obligation “to be responsible to Parliament for due exercise of his powers, duties and functions under the Constitution or any written law.”  This suggests that it is contrary to the concept of the sovereignty of the People exercised through the institutions of Parliament and the Executive Presidency that the President functions after the dissolution of Parliament for an indefinite time during an emergency as the sole executive authority in government.  Article 70 on the dissolution of Parliament does not contemplate the President governing for an indefinite length of time without reference to Parliament.

The President also has a duty under the Constitution Article 33 (1) (d), “on the advice of the Election Commission to ensure the creation of proper conditions for the conduct of free and fair elections.” The Elections Commission’s role is therefore not to take over the responsibilities of the President under the Elections Act, but to help him implement, rather than avoid, responsibilities under the Act and the Constitution.

The Public Interest

The re-summoning of the dissolved Parliament, to cover a period of national emergency like the Coronavirus pandemic, is in the public interest, as well as the President’s interest. It promotes public confidence that he is adhering to the norms of constitutional and accountable governance in the exercise of his powers under Article 70 (7) in a national emergency like the Coronavirus pandemic.

When the President acts in conformity with Article 70 (7) in a situation where the Elections Act does not cover the current issue of holding postponed Parliamentary Elections due to the Coranavirus pandemic, the public has a right to expect a reconvened Parliament to conduct itself with dignity and a sense of responsibility.  The challenges of the pandemic demand an all-party consensus to help the nation to overcome the crisis. This is no time for the usual shouts and screams of confrontational politics or all too familiar conspiracy theories. Indeed some Commonwealth countries with Parliamentary systems of governance have witnessed the total co-operation of all parties across the spectrum in helping the government to respond to the pandemic. Perhaps this is a required response, in reimagining governance after the debilitating Coronavirus pandemic.

A reconvened Parliament will have a limited objective, and that is to support the President and the government to continue with an effective public health response, facilitating the allocation of necessary financial resources to do so.  The dynamics of the coronavirus pandemic will require very limited sittings of Parliament, with a very limited number of Members of Parliament from both Government and the Opposition at Parliamentary sessions.   It will be clear that routine sittings will not be possible, nor can there be a recommencement of the usual agendas and procedures.  However, important issues of national concern can be brought before the Parliament at these sittings.  We the People can also demand that they (members) do NOT receive the usual salaries and perks, at this time of national crisis. 

Picking up the lives of citizens and strengthening governance to address the grave economic and public health problems we face will require new approaches, and strengthening and not undermining democratic institutions. Those who try to use an opportunity to function again as a Parliament and as representatives of the People at this difficult time for personal gain and confrontational politics will surely show us all just why they should not receive our votes at the next general election.

*Professor Savitri Goonesekere – Emeritus Professor of Law, University of Colombo