21 September, 2020

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The Government Is Pursuing A Dangerous Path Of Ruling By Extraconstitutional Means

By Harsha Gunasena

Harsha Gunasena

The President dissolved the parliament on 2 March and the general election was scheduled on 25 April. In his proclamation he has given the date 14 May to summon the new Parliament to meet. 

Envisioning a constitutional crisis the National Election Commission (NEC) requested the President to refer the matter to the Supreme Court and the reply was that the there was no reason hindering to hold the election prior to 2 June.

There after the NEC has decided that the general election will be held on 20 June and the relevant gazette notification has been issued. 

The NEC has postponed the general election as per the powers vested to them under the Section 24(3) of the Parliamentary Elections Act No1 of 1981. According the Article 70(5) (a) of the constitution, the proclamation dissolving parliament shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Therefore, the date should be prior to 2 June.

After the decision of the NEC to hold the election on 20 June which is a date after 2 June as stipulated by the constitution, a constitutional crisis was created. 

Therefore, there will be petitions to the Supreme Court challenging the decision of the President.

Even now the country is not governed in accordance with the constitution.

Prior to the 19th amendment to the constitution according to Article 44(2) the President may assign to himself any subject or function and shall remain in charge of any function or subject not assigned to any minister. This was repealed by the 19th amendment and therefore the President cannot hold any portfolio. But the President has not assigned the Defence portfolio to any one and hence he acts as the de facto Minister of Defence. Not only that, he has assigned other departments to the Ministry of Defence by the gazette notification on 10th December 2019. On 17 March 2020 he assigned the Department of Immigration and Emigration to the Ministry of Defence.

A state of emergency is prevalent in the country now. However, a state of emergency was not declared by the President. According to Article 155(4) (i) if a state of emergency is declared, the President will have to summon the dissolved parliament. Therefore, a police curfew was declared. It is not possible to impose police curfew in massive scale as of now. Therefore, it is illegal. According to M.A. Sumanthiran, that was the reason he was able to get Ranjana Ramanayake released recently.

If not remedied urgently, this will spread further destabilizing our Democracy.

Other than the government and its supporters, all the others including the opposition political parties and civil society expected to withhold the election until such time the epidemic is settled. It is a fair expectation. However, the government wanted to have it prior to 2 June. The government postponed taking remedial action against Covid-19 until the conclusion of the nominations. The current situation is a support of the intentions of the government to rule ignoring the provisions of the constitution. It is more dangerous if there would not be any possibility to hold the elections on 20 June.

Then the Minister of Finance got a resolution passed by the parliament on 23 October 2019 under Article 150 (2) approving the expenses of the government from 1 January 2020 to 30 April 2020. Therefore, the President does not have any authority to spend after 30 April 2020 since according to Article 148, parliament shall have full control over public finance.

However, there are two exceptions where the President can authorize the payments from the consolidated fund. One is where  the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law (Article 150(3)) and the other is where the President dissolves Parliament and fixes a date for an election and the dissolved parliament did not provide the expenses for the election (Article 150(4)).

The legal advisors to the President may opine that the doctrine of necessity may allow the President to act disregarding the constitution. But M.A. Sumanthiran PC points out that the doctrine of necessity can be operated when there are no other actions available according to the constitution. In this case, according to Article 70(7) the President can summon the parliament by proclamation if he is satisfied that there is an emergency has arisen. 

M.A. Sumanthiran PC has stated at a Television programme conducted by Sirasa TV that since the President shall declare the date of summoning the new parliament in his proclamation to dissolve the parliament and it should not be after 2 June, when the NEC declared the date of election after 2 June, the President’s proclamation to dissolve the parliament will become null and void. This is a strong argument. 

The Parliament is one of the three main pillars of a Democracy. Therefore, no one can argue that it is not necessary. If the people think that it is not necessary, they can assign all the powers to the President and abolish the parliament by a referendum. It is not fair to say at this point where the opposition parties have stated that they will support the government to pass the necessary resolutions, that it is not necessary to summon a parliament where they do not have the majority at a time of a national disaster. That can be said only by the people who place their own political interests ahead of the national interest. 

People who support the government politically should realise that to tell the government to act according to the constitution is not going against the government politically. We act to the defence of our Democracy. It is very easy to say that we need a dictatorship while staying in a Democracy, but it would be a matter of life and death to say that we need a Democracy while staying within a rule of dictatorship.

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Latest comments

  • 2
    0

    Arguments in a Court of Law in Sri Lanka! Pooh! Decisions are preordained. Some obscure Indian or Pakistani judgement which has no really no relevance can be cited as a reason for the requisite judgement. We now know how judges lick the boot of politicians either to get a promotion or post retirement benefits after delivering a verdict of the politician’s choice, even the death sentence. In any case, Cash is King, alas! Training courses in USA immediately after the judgement is not a possibility because of the COVID pandemic.It is well known that the opposition will have its way in the courts. That is why the government did not seek an opinion from the court when they should have. If we think we can rub with a man having military background, just because he has conducted himself benign and docile for the past few months we are highly mistaken. Do we want a situation for instance suddenly drugs to be found in judges cars? Imagine all the current opposition MPs under lock up, say as a COVID 19 contaminant? That is what they do for anyone crossing the District Boundary Line not satisfying the fellows at the border. One may ask must we pander to the needs of a dictator? It is far more dangerous to make him a dictator than to give a few crumbs.

  • 0
    9

    Mr. Harsha Gunasena: You can not be dumb. But, because of your mentality or your ideology you see only the negative. What is more important ? Is it the country running peacefully or the obedience or following the constitution. Are there any other legislation or parts of constitution or is it possible for the president to take decisions on behalf of the island in such unique and desperate situations.
    I remember how hostile the part of the country during the LTTE annihilation The same situation arose thereafter too. I do not know why should the president listen to hateful revengeful disappointed saboteurs like you because they are financially and ideologically supported by some one from behind.
    Sri lanka definitely needed some cultural revolution to change this mindset. You people need to be brain washed (that is according to their vocabulary).

    • 8
      0

      JD
      When you are criticizing an article, you should read the article carefully and counter argue to break the points raised. You have not done that.
      What I very clearly said was country should be governed according to the law of the country. This is not a family business to be run based on the whims and fancies of the persons who are running it. They are running the country for a certain period on public trust. Therefore they should abide by the law of the country. This is the basic principle of a Democracy.
      Mind you, you are accusing me that I am “financially and ideologically supported by some one from behind”. You are doing so under a psudo name. No one knows your identity, whereas I am fully exposed with my name and the photograph. That, I believe, is cowardness.
      Rather than accusing the writer, let us debate about what was written, if you can do so with an open mind.

  • 0
    4

    Harsha: Forget the accusation. It is very important that the country be run properly. Laws and every thing else of similar nature are important when the country is not run properly. Right now, a new president is running the govt with a not very effective govt, but very properly, I would say. What you say, let the patient die, but his stomach should be clean. I say the opposite. I do not know know why you can not understand or because of what reason, Parliamentary crooks are used to manipulate the law as they wish and all the lovers of the Law or very Law abiding people were no where to be found those days.
    Why should we shut up for ever for these patriotic imposters ?

  • 2
    0

    “It is very easy to say that we need a dictatorship while staying in a Democracy, but it would be a matter of life and death to say that we need a Democracy while staying within a rule of dictatorship”
    That is a good one.

    Soma

  • 1
    0

    JD
    Thanks for your comment.
    I will focus on the form in my first two points and would focus on the contents in the 3rd point.
    1. You said “Forget the accusation”. If I were you I would have apologized. You did not even say that you agree to my comment either.
    2. I ask you a hypothetical question. You have to be honest in this case. What would be your response if an opposition leader, say Ranil Wickremesinghe is the President now and he pursue the same path as the current President and Mahinda Rajapaksa is the opposition leader. If your response differs then there is nothing to argue with you. If your response is the same, can you give evidence from your previous comments or any other source to the effect that you have followed the same path through out.
    My answer for that hypothetical question will not change from my present stance. In evidence I can give examples from my articles where I have criticized most of our past leaders for their certain actions and praised the very persons for their certain actions.
    3. Regarding the contents of the main argument, I think I have given enough points in the article and in my previous comment. I invite you to read it once again. What you say is that the President is running the country properly so that he does not need any assistance from the Parliament. The issue of the subscribers to this argument is that they do not have the majority of the current Parliament. If they have the majority then the question of the corrupt politicians does not arise. By summoning the parliament the patient will not die but he will live longer. For instance Opposition Leader asked several questions in January or February related to Covid-19. Govt has given irrelevant answers. If they took actions then the disaster would have been minimized. Parliament is not appointed by themselves. They were elected by the people and they have a different mandate from the people different to that of the President. I agree with you, there may be crooks but that is a different issue. Do not mix it up with the problem we discuss. Please read my last comment and the last two paragraphs of the article before answering if you wish to do so.

  • 1
    0

    Mr. Gunasena!
    You write: “In this case, according to Article 70(7) the President can summon the parliament by proclamation if he is satisfied that there is an emergency has arisen.”
    I think you have twisted what has been written in Article 70(7).
    Does it say that the President ‘CAN’ summon or the President ‘MAY’ summon …?
    You know there is a vast difference between ‘CAN’ and ‘MAY’!

    • 0
      0

      Yes. You are correct. I tried to write that in my words. As you said there is a difference between “can” and “may”.
      But the two words indicate a possibility. I did not use the word “shall”. If so the idea is there is no alternative. Then there is a total distortion.

  • 1
    1

    This is the problem of articles written to prove own bias concepts rather than thinking openly, especially people’s point of view. If the writer does not like the President as a politician or a person it is a personal matter for him. In democracy, the law must support the majority. Majority of people’s priority is to have a decisive leadership and to see the leadership’s ability to respond to the needs of the hour. People have the confidence that GR delivers their expectations. People don’t give a damn about the constitution or a parliament (a bunch of crooks) at this point of time. Let GR to serve people rather than listening to analysts who have hidden agenda. Anyway the constitution says people are supreme. So people voted GR. So he is only answerable to people. If opposition who only wants power, pushes him too much, GR can conduct a referendum (like JR) asking people to give him executive authority to run the country with the caretaker cabinet for next 5 years, people will definitely make that call.

    • 0
      0

      Please read my reply to JD

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