Y L S Hameed
The Sri Lanka Parliament was dissolved by the President with effect from 3rd March 2020 under Article 70(5)(a) of the Constitution. The proclamation dissolving Parliament fixed the date for the election to be held on 25th April,2020 and the date for the first meeting of the new Parliament to be 14th May,2020.
In view of the outbreak of Covid 19 virus, the Elections Commission announced that the election would not be held as scheduled. However there is no provision in the law to postpone the Election in the whole Country. The only provision available with regard to postponement of Parliamentary Elections is S 24(3) of the Parliamentary Elections Act No 1 of 1981, which reads,
“ 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 Commission may......appoint another day.......” ( emphasis is added)
This provision is meant for postponement of elections in one or in a few districts and not in the entire country. This can be understood from the phrase ‘ in any electoral district’. If the legislative intent of this provision is to apply it to the entire country as well, ‘
the phrase- “or in the whole Country” could have been added.
Furthermore, the said provision reads further, “.....and such other day shall not be earlier than the fourteenth day after the publication of the order .....”. In case the date fixed for the new Parliament to meet is much less than 14 days after the conclusion of the General Election and on the eve of the election, circumstances that necessitate the postponement of the election in the entire Country arise, the election could be held only on a date after the date fixed for the first meeting of the new Parliament.
This means that if S 24(3) is interpreted to apply even to the whole Country when district wise gazette notifications are issued, the Legislature intended a conflict between Article 70(5) of the Constitution and S 24(3) of the Parliamentary Elections Act, which could not have been the case. Therefore it is clear that S 24(3) cannot be applied to postpone the election in the entire Country. That is to say that the Elections Commission has no power to postpone the election as a whole.
Way out for postponement
There are two ways in which this can be resolved. One is by making emergency regulations under the Public Security Ordinance in terms of Article 155 of the Constitution and provide for the postponement of the election as a whole. The other is to summon Parliament under Article 70(7) and temporarily amend S 24(3) of the Parliamentary Elections Act to enable the Commission to postpone the election in the entire Country, which I will deal with later in detail.
Shifting of the Date for the first Meeting of New Parliament
The President in terms of Article 70(5)(c) is empowered to vary the date for the first meeting of the new Parliament. However he cannot shift the date beyond June 2nd as three months will lapse thereafter. In other words, by having recourse to the method aforesaid, the Election cannot be postponed beyond a date close to June 2nd. That is to say that under the existing laws, the Election should be held prior to June 2nd, 2020 and not beyond.
Putting off the Election After June 2nd
The Parliament which has been dissolved can be summoned again under Article 70(7) and Article 155. The latter occurs when emergency regulations are made under the Public Security Ordinance in which event the Proclamation bringing the Public Security Ordnance into operation shall operate as the summoning of Parliament on the 10th day after such Proclamation unless such Proclamation appoints an earlier date.
What is most crucial for the discussion here is the summoning of Parliament under Article 70(7). It reads,
“ 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 Parliament which has been dissolved to meet ......and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election whichever is earlier.”
It can be noted here that Article 155 specifies a situation where emergency regulations are promulgated while article 70(7) envisages a general emergency situation. This can be looked at, in two ways.
One is that what is envisaged in the latter is broader than what is specified in the former and not limited thereto. The other is that the latter is ‘ a stand aloof Article’ completely separated from the former. Either way, Article 70(7) is meant to deal with situations beside approving emergency regulations by Parliament.
Here, a question arises as to whether the Parliament summoned under Article 70(7) can amend the Constitution or any law. Here Parliament is summoned for emergency purposes and therefore no amendments either to the Constitution or to any law which will be effective until amended again or repealed as in the case of enactments by an ordinary Parliament is possible.
However in my view, if the situation of the Country demands that the election be postponed beyond three months, a necessity arises to remove the difficulty in doing so, in view of the three months deadline. Therefore to effect the removal of that difficulty, the Constitution or any law for that matter could temporarily be amended so that the emergency is answered. In other words, the Doctrine of Necessity is interwoven in Article 70(7) to take care of any emergency situation that may arise after dissolution of Parliament.
Revocation of the Gazette Notification
Another question that needs to be cleared here is whether the gazette notification issued by the President dissolving Parliament can be revoked. The answer is a clear ‘no’. The reason is that the Parliament that may be summoned under Articles 77(7) or 155 is an emergency Parliament which can adopt measures only of an emergency nature whereas if the gazette notification is revoked, what will come into existence is a fully fledged Parliament which no longer exists.
What is not in existence cannot be brought into existence by merely revoking the gazette notification particularly in the absence of any provision to that effect.
In case, the amendment to the Constitution aimed at removing the three- month deadline fails for want of the special majority, then, the only option would be to turn to the Supreme Court under the Doctrine of Necessity.
How long Parliament summoned under Articles 70(7) or 155 can go
Another question that needs to be answered here is whether the Parliament summoned for emergency purposes discussed above can be in session even after the completion of five year period from the date of its first meeting after the last General Election since the mandate given by the People was only for five years.
What must be understood here is that even when Parliament is dissolved after the competition of five years, Parliament can be summoned under Articles 70(7) or 155. ‘The five year clause’ does not apply to this emergency Parliament. It applies only to the original, fully fledged Parliament. Therefore, so long as the emergency persists or until the conclusion of the General Election, this Parliament can be in session.
The emergency will have to be deemed to persist until the conclusion of the General Election in this instance notwithstanding the COVID-19 issue coming to an end lest the emergency measures adopted with regard to postponement of the Election will lapse thus creating a constitutional crisis with regard to holding the Election.
There is no law in Sri Lanka today providing for the postponement of the General Election for the whole Country. This can be resolved either by making emergency regulations under Article 155 or by summoning Parliament under Article 70(7) and enacting temporary provisions.
In case the Election is to be postponed beyond three month period from the date of the proclamation dissolving Parliament, an amendment needs to be moved to Article 70(5) to that effect since the Doctrine of Necessity is interwoven in Article 70(7). In the event of failure to obtain the special majority, the only way is to move the Supreme Court for a suitable directive.
This writer is an LLM and can be contacted @email@example.com