By C.A. Chandraprema –

C.A.Chandraprema

After the Elections Commission declared the 20th June to be the date on which the parliamentary election will be held, the yahapalana political parties in unison have raised the cry that the dissolution of Parliament on the 2nd March is now a dead letter. TNA politician M.A Sumanthiran for example, has said that the new election date, being more than three months after Parliament was dissolved on the 2nd March 2020, renders the presidential proclamation dissolving Parliament invalid. He holds that while the President can dissolve Parliament, the same constitutional provision that gives him the power to do so, compels him to fix a date for the new Parliament to meet no later than three months after dissolution and that this three month period ends on the 2nd June. This is generally the view held by the yahapalana political parties across the board.

The chances are that the yahapalana NGOs will petition to the Supreme Court to get the President’s Gazette declared invalid after the fashion of the fundamental rights case that was filed when President Maithripala Sirisena dissolved Parliament in November 2018. In 2018, President Sirisena dissolved Parliament on the grounds that he had the authority to do so under Article 33(2)(c) of the Constitution. The argument that was made against it was that while Article 33(2)(c) was the driving lisence, the road rules were contained in Article 70(1) and the Supreme Court endorsed the latter view and declared that if Parliament was to be dissolved before the expiration of four and a half years, that required approval by a two thirds majority in Parliament. This time, the yahapalana NGOs will first have to decide who they going to courts against, the President or the Elections Commission.

The President has dissolved Parliament in accordance with the ‘lisence’ as well as the the ‘road rules’ after the lapse of four and a half years as stipulated in Article 70(1). In doing so, he has adhered to Article 70(5)(a) which states that the Gazette dissolving Parliament shall also fix the date of the poll and the date for the first meeting of Parliament as well. Once that has been done, the Elections Commission takes over. After the Elections Commission took over the process, the Coronavirus pandemic broke out and the Elections Commission postponed the election under the powers vested in them under Section 24(3) of the the Parliamentary Elections Act No: 1 of 1981. When the elections Commission issued Gazette No: 2167/19 dated 21 March 2020, postponing the Parliamentary election that had been declared on 2 March 2020, they stated that it was not possible to hold the poll on the date set in the President’s gazette dissolving Parliament due to the Coronavirus outbreak and that they would in due course fix another date for the poll. As they had pledged in Gazette No: 2167/19, the Elections Commission met again and fixed June 20th as the date of the poll.

Article 101of the Constitution

The Elections Commission has argued that they fixed a date that goes beyond the three month period stipulated in Article 70(5)(a) of the Constitution under the powers vested in them by Section 129 of the Parliamentary Elections Act No: 1 of 1981. What this Section 129 states is that If any difficulty arises in first giving effect to any of the provisions of this Act, the Commissioner may, by Order published in the Gazette, issue all such directions as he may deem necessary with a view to providing for any special or unforeseen circumstances or to determining or adjusting any question or matter for the determination or adjustment of which no provision or effective provision is made by this Act. Section 129 is a provision designed to give the Elections Commission the discretionary power to remove difficulties in the impelemtation of the parliamentary elections law.

A similar provision existed in our previous parliamentary elections law, the the Ceylon Parliamentary Elections Order in Council of 1946 in the form of Section 93. What section 93 of the 1946 parliamentary elections law stated was that “If any difficulty arises in first giving effect to any of the provisions of this Order, the Governor or Governor-General, as occasion may require, may, by Order published in the Gazette, do anything which appears to him necessary for the purpose of removing the difficulty…” Its quite clear that provisons of the kind found in Section 93 of the 1946 law or Section 129 of the 1981 law have been put in place to facilitate the holding of elections. The law had been designed in this manner to prevent a knotty technical issue from derailing the democratic system itself.

The Elections Commission is a powerful body which has and entire Chapter of the Constitution devoted to it. Yet another Chapter of the Constitution is devoted to the Franchise and Elections and that Chapter also relates directly to the Elections Commission. However the Elections Commission is completely helpless without the Parliamentary Elections Act No: 1 of 1981 through the provisions of which they hold elections to Parliament. There are separate laws for elections to the provincial councils and local government institutions. The Elections Commission cannot fulfil the duties imposed upon it by two Chapters of the Constitution without this legislation.

The Elections Commission has the power under Section 24(3) of the Parliamentary elections Act of 1981 to change the date of the poll set by the President. There is nothing in section 24(3) of the Parliamentary Elections law of 1981 which says that the Elections Commission has to fix a date within the three month period set by the Constitution. It will of course be argued that the Constitution is the fundamental law of the land and that no ordinary law can override a constitutional provision. The question here is, even though the Elections Commission has acted under Section 24(3) and Section 129 of the Parliamentary Elections Act of 1981 which is an ordinary law, don’t they have constitutional cover for the actions they took? The sole reason for the existence of the Parliamentary Elections Act of 1981 is to give effect to Article 101 of the Constitution.

Article 101(1)(e) of the Constitution states that Parliament may by law make provision for the procedure for the election of Members of Parliament. Article 101(1)(g) states that Parliament may by law make provision for the the grounds for avoiding such elections, and where an election has been held void, the manner of holding fresh elections. Most importantly, Article 101(1)(i) states that Parliament may by law make provision for the manner of determination of disputed elections and such other matters as are necessary or incidental to the election of Members of Parliament.

What does the phrase “SUCH OTHER MATTERS AS ARE NECESSARY OR INCIDENTAL TO THE ELECTION OF MEMBERS OF PARLIAMENT” in Article 101(1)(i) actually mean? It can be observed that Section 24(3) of the Parliamentary Elections Act of 1981 which states that “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, 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”, is completely consistent with the provisions in Article 101 of the Constitution mentioned above.

Likewise, Section 129 of the Parliamentary Elections Act of 1981 which states that “If any difficulty arises in first giving effect to any of the provisions of this Act, the Commissioner may, by Order published in the Gazette, issue all such directions as he may deem necessary with a view to providing for any special or unforeseen circumstances or to determining or adjusting any question or matter for the determination or adjustment of which no provision or effective provision is made by this Act”, is also completely coinsistent with Article 101 of the Constitution.

The Parliamentary Elections Act of 1981 has cross references to the Constitution in many places. For instance Section 2 of the 1981 Act states that each electoral district shall return such number of Members as the Commissioner of Elections has certified in the Order for the time being in force under Article 98 (8) of the Constitution. What article 98(8) of the Constitution says is that The Commissioner of Elections, as soon as possible after the certification of the registers of electors for all the electoral districts, shall by Order published in the Gazette, certify the number of members which each electoral district is entitled to return.

Constitutional status of the EC

Even the President has to abide by the Parliamentary Elections Act of 1981 when he issues the Gazette dissolving Parliament. Article 70(5)(a) of the Constitution only says that when the President dissolves Parliament, he has to fix dates for the poll and for the first meeting of the new Parliament. However the Parliamentary Elections Act of 1981 imposes additional responsibilities on the President specifying for instance in Section 10 that when the President issues the proclamation dissolving Parliament, he has to also specify the period during which nomination papers shall be received by the returning officers. This Section 10 also specifies that when the President fixes the nomination period, it has to commence on the 14th day after the Gazette dissolving Parliament is issued and end on the 21st day.

When the President issued Gazette No: 2165/8 on 2 March 2020 all these requirements were met and it had the date of dissolution, the period for nominations, the date of the poll and the date that the new Parliament was to meet for the first time. Though the Parliamentary Elections Act of 1981 has many cross references to the Constitution in that manner, one instance where it has no cross reference is Section 24(3) which states that 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 President’s notice relating to the election, 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.

It is interesting to note that Section 24(3) specifies that the Elections Commission cannot fix another date which is not at least 14 days after the day for the poll fixed by the President, but is silent on how long this postponement can be and what happens if the Elections Commission is unable to fix a date which falls within the three month period stipulated in Article 70(5)(a) of the Constitution. Opposition theoreticians have been saying that in such an event, the President’s order dissolving Parliament will be rendered null and void. This is now open season for constitutional interpretations. However things are not that simple, the President has made an order by virtue of powers vested in him by the Constitution. Then the Elections Commission has made a decision based on the powers vested in them by the Parliamentary Elections Act of 1981 which itself derives its authority from Article 101 of the Constitution. Section 129 of the Parliamentary Elections Act of 1981 which has obviously been formulated under the imprimateur of Article 101 of the Constitution allows the Elections Commission to take suitable decisions to meet exigencies.

Everyone knows that every now and then situations do arise for which the law may not have expressly provided. Most importantly, the Elections Commission is supposed to have special Constitutional status as an independent body. Furthermore, the Constitution in certain circumstances allows for the three month period mentioned in Article 70(5)(a) to be increased to four months. For example, Article 70(6) of the Constitution states that where the poll for the election of the President is to be taken on a date which falls between the date of dissolution of Parliament and the date before which Parliament is required to be summoned to meet, Parliament shall, notwithstanding anything in that paragraph, be summoned to meet on a date not later than four months after the date of dissolution of Parliament.

If the date of the first meeting of Parliament can be put off by one month under Article 70(6), can it be argued that an important constitutionaly mandated body like the Elections Commission acting under laws made to give effect to Article 101 of the Constitution cannot in unforeseen and exceptional circumstances fix a date for election beyond the three months period stipulated in Article 70(5)(a)? If someone petitions the Supreme Court as they have threatened to do, the SC will undoubtedly have to take into account the fact that both the President and the Elections Commission have acted within the existing law in doing what they did. One of the key considerations would be that a body like the independent Elections Commisssion should not be hamstrung in the fulfillment of their duties by technical quibbles.

It should be noted that the Elections Commission acting under Section 24(3) of the Parliamentary Elections Act of 1981, which is an ordinary law, has changed a proclamation made by the President under Article 70(5)(a) of the Constitution. The Elections Commission has been able to do so obviously because this Section 24(3) gives effect to Article 101(1)(i) of the Constitution. It can be argued that Article 101 and particularly Article 101(1)(i) of the Constitution and the laws made under it, makes provision for the solution of issues that may arise from actions taken under Article 70(5)(a) of the Constitution.