By Tatiyajith Karunaratne –

The apparent inability of the new Parliament to meet on the date proclaimed by the President within a period of three months from the date of dissolution has given rise to a lot of debate. 

Some argue that the President should summon the dissolved Parliament and that the Elections Commission (“EC”) has stepped out of its boundaries by changing the election date originally fixed by the President. Others argue that the summoning of the dissolved parliament is not necessary, and the actions taken by the President and the EC are legitimate. 

At the outset may I indicate that I take the latter view. Therefore, my arguments support the view that the President is not in breach of the principles of good governance. However, in doing so I do not wish to be critical of anyone who hold the other view. Whilst respectfully disagreeing with their view I fully concede that they are well entitled to hold and express a contrary view. 

Arguments in favour of re summoning the Parliament

1. That the President’s failure to summon the old Parliament and instead carrying on with a caretaker government for a period exceeding three months is a clear breach of the principles of good governance. Accordingly, the President should re-summon the dissolved Parliament forthwith as it is apparent now that the new Parliament cannot meet before the lapse of  period of three months from the date of dissolution.

2. That EC has no legitimate authority to postpone the date of election which was originally proclaimed by the President. It is also argued that it is the President who can nominate a date for the General Election and if the said date has to be changed it can only be done by the President by way of a subsequent Proclamation.

3. That Section 24(3) of the Parliamentary Elections Act (“The Act”) does not apply to a “General Election”, and instead applies to a situation where an election has not been conducted in “one” electoral district (i.e a single electoral district). As such, the EC cannot postpone a General election acting under sec. 24(3) of the Act.

Arguments against the re summoning the Parliament

1. That Section 24(3) the Act empowers the EC to change the date of the General Elections.

2. That the procedure for the elections are laid down in the Act. In a situation of an emergency or unforeseen circumstance changing the date of the General Election (or a By-election) is well within the powers of the EC which is an independent authority established by the Constitution of Sri Lanka (“Constitution”) which is entrusted with the task to hold elections.

3. That the dissolved Parliament has no legal right (as well as a moral right) to demand that the President re-summons the dissolved Parliament. 

4. That although it is clear from the spirit of the Constitution that all three arms of the Government should be engaged in the proper governance of the country, during the lead up to a General Election it is inevitable that there is no effective participation by the Legislature as the country is governed by a caretaker government. 

5. It is further opined that the Parliament has to be re-summoned only if participation of the legislative arm of the government becomes a necessity in the opinion of the President. This becomes a real necessity if new laws are needed to be enacted to address the emergency the country is facing as passing laws is the exclusive function of the Parliament.

Dissolution of Parliament

In terms of the Constitution, the life of the Parliament can come to an end in three different ways. In this instance it has been dissolved after its completion of four and a half years. 

The Constitution confers an unfettered discretion on the President to dissolve the Parliament on its completion of four and a half years. As such it is difficult to see how the act of dissolution by the President in this instance can be seen as ultra vires and giving rise to a violation of any right guaranteed by the Constitution.

The current situation i.e. the inability on the part of the EC to hold a General Election could very well have taken place even after the Parliament being dissolved having after completed its full term. In such a case there is no room for an argument that the life of the Parliament was cut short by the action of the President. Therefore, it is worthwhile to consider whether the situation would have been different if the current situation arose in a scenario where the Parliament had been dissolved after completing its full term.

Article 62(2) of the Constitution stipulates that every Parliament will continue for a period of five years (unless dissolved sooner) and expiry of the said period shall operate as a dissolution of Parliament.  As such it is evident that the maximum life of an elected Parliament is five years and at the end of the said five year period  the mandate given by the people comes to an end and it operates as a  dissolution of the Parliament.

Article 70(5)(b) dictates that when the Parliament is dissolved after completing its full term, the President should forthwith fix a date or dates for the election of the Members of Parliament and also fix a date for the new Parliament to meet on a date “not later than three months” after the date of such Proclamation.

It is important to note that Article 70(5)(a) which deals with dissolution of Parliament by the President, and Article 70(5)(b) which deals with the dissolution of Parliament by the completion of its full term are identical.

Parliamentary Elections Act

Procedural aspect of an election is governed by the Act.  It is noteworthy to point out that in dealing with the procedural steps regarding elections, the Act refers to a “single electoral district” which makes those procedural steps to be equally applicable to  an election held in a single electoral district, multiple electoral districts or an elections held in all twenty two electrical districts. Thus, the Act covers General and By-elections.

Section 10 of the Act stipulates that the Proclamation issued by the President under Article 70(5)(a) or (b) should specify a nomination period and the date on which the poll is taken.

Sec. 22 of the Act deals with contested elections. According to the said section after the nomination period and allocation of symbols to independent groups the Returning Officer for each district should report to the EC that it is a contested election.

Sec. 24 of the Act stipulates that after receiving a notice issued under Sec. 22, the EC should publish a notice in the Gazette specifying (i) Electoral District in which the election is contested (ii) names of the candidates and the independent groups and approved symbols (iii) date of poll being the date specified under Sec. 10 and (iv) situation of the polling station or stations. It is important to remember that the date specified under Sec. 10 is the same date nominated by the President in his Proclamation.

Section 24(2) of the Act empowers EC to change the location of a polling station (or stations) in case of an emergency.

Section 24(3) empowers the EC to change the date published under sec. 24(1) in the case of an emergency or unforeseen circumstance. It is noteworthy that the date referred to in this section is as same as the date nominated by the President in his Proclamation. Therefore, a plain reading of Sec. 24 in its entirety makes it abundantly clear that the Act empowers the EC to change the date nominated by the President in his original Proclamation. If the law specifically empowers the EC to change the date of election proclaimed by the President, how can there be any merit in the argument that the EC does not have power to change the date proclaimed by the President and that in doing so it usurps the power of the President? 

Caretaker Government

During the time between the dissolution and the holding of a General election, Article 70(7) of the Constitution empowers the President to re-summon the dissolved Parliament if he is satisfied that an earlier meeting of Parliament is necessary. 

After dissolution, the Country is governed by a caretaker government. Caretaker government does not have the full authority to take actions which binds a future Parliament. Therefore, the President will have to be satisfied that the need has arisen to take any action which cannot be performed by a caretaker government.

There are conventions in the democratic world which outlines the limitations of a caretaker government. These are designed to prevent an outgoing government creating binding acts on the future Parliament which may place the future Parliament in a difficult situation. The Department of the Prime Minister and Cabinet of Australia has published a document titled “Guidance of Caretaker Conventions” which has laid down the scope of functions of a caretaker government. According the said document in summary, a caretaker government should avoid 

1. making major policy decisions that are likely to commit an incoming government; 

2. making significant appointments; and 

3. entering major contracts or undertakings (which will bind the future government). 

Currently Sri Lanka is governed by a caretaker government. Therefore, a question arises as to whether combating a pandemic is outside the scope of a caretaker government. As the obvious logical answer is in the affirmative, it is hard to imagine the basis on which the actions of the caretaker government can be said to exceed its legitimate boundaries. 

It is noteworthy that Article 70(7) “does not compel” the President to summon the Parliament during a dissolution every time an emergency arises. President has to not only be satisfied that an emergency has arisen, but also has to be satisfied that the emergency is of such a nature that an earlier meeting of the Parliament is necessary. In other words, the President has to be satisfied that handling of the emergency is beyond the scope of a caretaker government. One clear example is the need to introduce new laws to curb the situation. As passing laws is the exclusive function of the legislature, no new laws can be enacted without re-summoning the Parliament. 

Conclusion of the General Election

I read in a recent article an argument to the effect that the answer to the present problem lies in the definition provided by the Constitution to the words “Conclusion of the General Election”. Therefore, I wish to examine Article 170 of the Constitution.

Article 70(7) of the Constitution stipulates that once the Parliament is re-summoned (when the President is satisfied an emergency has arisen and an earlier meeting of Parliament is necessary), that it continues to function till the termination of the emergency or the “conclusion of the General Election” whichever occurs earlier. This creates the requirement to clearly define the phrase “Conclusion of the General Election”.

According to Article 170, Conclusion of the General Election takes place by whichever of the following two events occurring first.

1. Members of Parliament for all the electoral districts in respect of which a poll has been taken on the date specified in the President’s Proclamation have been declared elected by the respective returning officers; or 

2. On the results declared more than half the total membership of Parliament consists of Members belonging to any single recognized political party or a independent group.

The absence of a clear definition of “Conclusion of General Elections” would have led to confusion if after a General Election, the party in the opposition became  the clear winner despite the fact that the elections in all 22 Districts could not be completed and the emergency is still continuing. It would have created the situation that the winning party would have been insisting on forming their own government and the outgoing Parliament would have been maintaining the position that they have to continue as neither the emergency situation nor the election has come to a conclusion. This would have led to utter chaos (or may be fisticuffs between the lawmakers as we witnessed towards the latter part of 2018). 

Therefore It is abundantly clear that the inclusion of the definition of a “Conclusion of General Election” in Article 170 was intended to prevent the arising of such a situation. 

As mentioned above, the Act when dealing with the steps taken towards holding an election, speaks about “one electoral district”. This would effectually mean that the Act will apply to “any election” whether it is a “General Election” or a “By-election.

Therefore, in my view, Sec. 24 of the Act is not restricted to” an election of one or more electoral district”.  The application of the said provision covers the situation of an election held in “one or more electoral districts” and can extend to an election held in “all twenty two electoral districts” which can better be described as a General Election.

Public interest in summoning the dissolved Parliament

Whilst holding the view that there is no valid legal basis for the re -summoning of the dissolved Parliament, I also hold the view that there is no moral justification or any public interest in summoning the dissolved Parliament.

As everybody knows the primary function of the Parliament is to make laws for the proper governance of the country. Soon before the dissolution we witnessed considerable time being wasted on talking about recording of telephone conversations by a member of the Parliament. In most of the countries including Australia intercepting and recording telephone conversations are prohibited by law. It is considered to be a clear violation of a person’s privacy. Therefore, in Australia recording a telephone conversation without a legally valid warrant issued by a Court of law is a punishable offence. Recently a Barrister who secretly recorded his estranged wife’s telephone calls was not only charged in the Magistrates Court but also was permanently disbarred from practicing as a Barrister. 

Strangely lawmakers in our country did not proceed to enact laws to prevent similar occurrences in the future. It was disgraceful to see that the Parliamentarian in question boasting publicly that he has resumed his operation of recording private telephone conversations made to and from his mobile phone. Sadly, our lawmakers have failed in their primary duty.

However, some have expressed the view that the poor quality of the Parliamentarians should not be a justification for overlooking the principles of good governance. I do not take issue with that view. However, as I have previously pointed out, refusal to re-summon the previous Parliament in this instance has not led to a violation of the good governance principles. Therefor I wish to point out that the re-summoning of the Parliament is not justifiable not only from a legal perspective but also from an ethical and moral perspective.

Three months stipulated by the Constitution

Those who argue in favour of re summoning the Parliament make the point that the Constitution contemplates the country being governed without a Parliament  only for a period of “three months”. They point out that Article 70(5) dictates to the President to nominate a date to reconvene the Parliament within three months of its dissolution. Therefore, they submit that if the new Parliament cannot be summoned to meet within three months from the date of the Proclamation dissolution of the Parliament, the old Parliament must be re-summoned. 

When the Parliament is dissolved an election date and a date for the new Parliament to meet must be proclaimed in keeping with the sovereignty of people as recognized by Article 4 of the Constitution. Therefore, the Constitution specifically dictates that those dates should be clearly stipulated. It is correct t say that the action of the Executive nominating those dates in the Proclamation is also an acknowledgement of the said sovereign right of people in compliance with the doctrine of separation of powers and the rule of law.

Fixing the initial date for an election cannot be left in the hands of the EC. Therefore, when the EC is tasked to hold an election someone in authority will have to direct it to complete the task in a timely manner. The EC cannot be simply entrusted with the task of holding the election on a date which it considers is suitable. The task of the EC is to carry out the election at the ground level. However, as previously discussed, in the process if encountered with an emergency situation the law has specifically granted permission to the EC to change the date proclaimed by the President. 

Article 70(5) contemplates a normal situation. Constitution regards that a period of three months is adequate to hold a General Election to its conclusion in the normal circumstances. The EC has listed the election for 20^th June. Therefore, the new Parliament should be able to meet by the end of June. As such the Country will be without a Parliament only for less than thirty days beyond the period of three months referred to in Article 70(5). It is also evident that the delay has not occurred through any intentional act on the part of the President. In these circumstances can it be said that a serious breach of the principles of good governance has taken place?  Is it correct to level an allegation at the Executive of intentional violation of the principles of good governance?

Conclusion

Principles of good governance cannot and should not be undermined. Any intentional attempt by one arm of the government to undermine another arm should not be condoned. However, before arriving at any conclusion on the actions of the Executive, it has to be carefully examined whether the Executive has made any deliberate attempt to undermine the Legislative arm of the Government. After a scrutiny of the sequence of events from 2 March 2020, it can be concluded that the President has not made any intentional attempt on his part to undermine the legislative arm of the government.

On the other hand, the President having formed the opinion that re summoning of the Parliament is not necessary, any action taken by the executive arm of the government in combatting the pandemic should be strictly within the legal framework currently in place. Any action which is not supported by laws thast are currently in place can give rise to a violation in the eyes of the Court which exercise checks and balances on the executive action.

EC has been faced with a new and an unprecedented challenge. General Elections cannot be postponed indefinitely. Life must go on even during a pandemic. The EC should device ways and means to conduct an election during these difficult times. EC should take necessary guidance from the health experts in this regard. The executive arm of the Government is duty bound to extend its fullest corporation to the EC to conduct a free and fair election.

At the end of the day it is the Supreme Court which is empowered to pronounce a final and binding decision on this issue. A five Judge bench has already been constituted to preside over the cases listed in the Supreme Court and we should have a decision in the very near future. 

I rest my case. May it please the Court!

*Tatiyajith Karunaratne (LL.M Melb.) Barrister & Solicitor, Attorney-at-Law, Former Deputy Solicitor General of the Attorney General’s Department of Sri Lanka, Currently a Crown Prosecutor in Australia.