By Mahinda Pathirana –
A school of thought headed by Mr M.A. Sumanthiran PC, former MP TNA has suddenly emerged to claim that “with the decision commission made today (20th April) with regard to the election date, the presidential proclamation dissolving the parliament has become ineffective”. The senior lawyer argues that the time period of three months to summon the new parliament with a fresh mandate has subjected the President to a “strict condition” by the article 70 of the constitution. Elaborating on the ‘condition’, former MP says, the “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.” (21st April 2020- Colombo Telegraph, later on Daily Mirror dated 24th April 2020). The counsel states that “the condition cannot be met for whatever reason, the Presidents proclamation becomes invalid.”
It is true that the article 70 of the constitution states that, upon the dissolution of the parliament by the President through a proclamation, he/she should summon the new body of legislature no later than three months. But, I am still trying to find out the provision in the constitution that invalidates the gazette notification of the president dissolving the parliament, if the so called ‘condition’ put forward by the article 70 of the constitution is not met. Let me come to this particular point in detail in the latter part of this article.
Mr Sumanthiran seems to particularly base his argument on the premises that, only when the President dissolves the parliament before the completions of its full term, in this case, 4:5 into the term, the so called ‘strict condition’ applies to him (the President), in the absence of such conditions being not met and, as a result, the auto-validation of the old parliament takes place.
The first challenge to this argument is the non-exclusivity of the three month period only to the article 70 (5A) of the constitution. It is written there in no uncertain terms that the period of three months equally applies to both scenarios; dissolution by proclamation (article 70) or organic dissolution or dissolution of the Parliament by virtue of paragraph 2 of the article 62 of the constitution. Therefore, the period of three months cannot be considered an exclusive condition to the President dissolving the parliament by a proclamation. Hence, the very base of Mr Sumanthiran’s argument gets uprooted.
Further, it should be stated that there is no such thing as strict conditions in a constitution, as all the provisions of a constitution are generally supposed to be adhered to. They are either followed or violated. No privileged adherence or violations are existent. Under some circumstances, there is guidance to follow enacting some powers by the President. The limiting of the President dissolving the parliament not later than 4:5 into its term is one such case. And, at the same time, it is common sense that the three month period is not a condition put to the executive at all from another angel. If it is a condition, the authors of the constitution should have explicitly stated the scenarios where the so called conditions are violated, and what happens next. We do not find such provisions, not even guidance, in the constitution.
Let me now come to the current situation in the country and the rest of the argument of the pro-old Parliament proponents.
After the initial failure of fixing a date for the elections on the part of the National Election Commission, when the elections were postponed by former in the wake of Covid-19 pandemic, the NEC has now fixed 20th June, 2020 as new date for the general election. The proponents of the pro-old Parliament say that, with the new date going beyond the 2nd of June, the date that falls within the three month period, the gazette proclamation by the president to dissolve the parliament and summon the new one renders ineffective.
Let me approach this argument through the parliamentary election Act of 1981. By postponing the elections, NEC has invoked a law (24 (3) in the parliamentary election Act of 1981 that gives the election commission powers to “appoint another date for the taking of such poll” in the wake of “any emergency or unforeseen circumstances.” Interestingly, the above Act does not put any condition to the commission with regard to the time period during which the postponed elections should be held. In other words, the commission is not restricted in choosing a new date. The term “unforeseen circumstances” warrant our special attention here. In terms of that, NEC can delay elections by weeks, months or even by years. The Act empowers the commission to delay it until such times the commission thinks the emergency or the unforeseen circumstances are over.
If we put the so called condition of period of three months, allegedly set to the Executive by the article 70 of the constitution in this context, the powers of the President stipulated in the constitution and those of National Election Commission, as contained in the parliamentary election act of 1981 become contradictory and pit against each other, resulting in a deadlock. In fact, having being concerned of this apparent legal challenge to his opinion, Mr Sumanthiran, the main proponent of the argument, gets away casually from here saying that “while there was no prohibition on the commission to set date of their choice according to the parliamentary election Act, there was clear constitutional imposition upon the President that he can no longer fulfil due to polls being delayed beyond June 2 as a result of COVID 19.” My Question is, If there is no prohibition for the NEC to restrict itself to a certain time period, more specifically to a ‘strict condition’ of three month period, as stated by Mr Sumanthiran, to hold elections, how can there be prohibitions for the President to go beyond the stipulated period of three months? Had the authors of the constitution taken the three month period in the article 70 of the constitution as mandatory and overriding condition to be followed by the President, they would definitely, not only have set out provisions of violations of such conditions there or elsewhere and would have introduced restrictions for the NEC in terms of the period of delaying the elections in the parliamentary election Act of 1981.
A legal system of a country is to be read as a one single unit, so that the consistency of such system is maintained for the general good of the people. This is even more significant, especially when the practical applicability of certain laws becomes challenging. Interpretations to constitutions should be done, not destabilise a country but to establish. What Mr Sumanthiran, the President’s counsel, has done is the opposite.
Let us be clear and practical; President is expected to summon the new Parliament only following an elections. This has to be understood in terms of the theory of cause and effect; holding the elections the cause, summoning of the parliament the effect. If the independent commission of the election cannot hold the election in the due course, President cannot have Aladdin’s wonder lamp to create Members of the Parliament. Finally,let me remind you of the legal axiom Lex non cogit ad impossibilia; law does not compel a man to do which is impossible.
*Mahinda Pathirana, Senior lecturer in German. Chairman, Sri Lanka press council