The Government Is Pursuing A Dangerous Path Of Ruling By Extraconstitutional Means
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 This was repealed by the 19th amendment and therefore the President cannot hold any portfolio.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.
