Constitutional crisis? Lost game of the Second Eleven!

The Government is already faced with the challenges from a strong opposition, much more dreadful than the parliamentary Opposition – COVID-19 – Pic by Shehan Gunasekara

The puppetry, the country, watching about the need to reconvene Parliament has deepened our perplexity. Chapters and verses are quoted driving us to believe them. We cannot be blamed for beginning to see the tempests in our tea cups they are showing. 

Some maintain that the country is heading towards another crisis amidst the COVID-19 pandemic. They allege we are on the edge of a crevasse of a constitutional crisis, and the Parliament should meet to avoid it. Let us examine this.

The word dissolution applies in common to both, a Parliament dissolved by the president under a proclamation as well as a Parliament that stands dissolved after its full term. 

Article 62 (2) “expiry of the said period of five years shall operate as a dissolution of Parliament”

And 70(1) ‘president shall not dissolve Parliament until the expiration of a period of not less than four years and six months…”

This shows that there is no distinction between a Parliament which stands dissolved due to expiry of the term and a Parliament dissolved by the president, with regard to the application of the constitutional provisions. There is only one instance according to the Constitution where such a Parliament could be summoned to office after dissolution. 

Article 70(7), “if any time after 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 on a date not less than three days from the date of such proclamation and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier.”

According to this in order to convene the Parliament;

1. The president has to be satisfied that an emergency has arisen,

2. And the situation necessitate such an early meeting

Unless the president is of that opinion, no one can force him to do so. Definitely not any ex-parliamentarians who now stand reduced to normal persons, native of the country!

The feeling that they could have continued for another six months is a flight of fancy, having no constitutional validity. The President in power and the caretaker Cabinet is empowered by the constitution to continue until election is held and a new government is formed. Convening of a Parliament does not arise except under article 70(7). Hence there is no constitutional requirement to reconvene a dissolved Parliament.

Dubious and untrustworthy statements by senior Opposition politicians to justify their intentions behind the claim to reconvene the Parliament make things worse. They say ‘we promise we only want to avoid a constitutional crisis’. Sounds naïve! 

Their repeated assurances that it is only for the purpose of approving funds for expenditure too is highly incredible in the context of how they behaved during the last parliamentary session before dissolution. On that occasion the opposition created the picture of being hell-bent to throttle the Government at any given instance. So the demand for reconvening the Parliament looks like a Trojan horse!

Another reason stated by them to support their argument in favour of summoning the Parliament is the canvassed consternation about the possible consequential perils of not doing so. They accuse that the President has no powers to authorise any expenditure from the Consolidated Fund without the approval of the Parliament. 

Former Finance Minister Mangala has gone to the extent of cautioning the President that if he continues to act in this manner he can be charged and a Court of Appeal can decide to impose the removal of his civic rights and confiscation of his properties. Is he trying to do a favour to the President by reminding him of the danger ahead or is he trying to intimidate him to make him reconvene the Parliament? Whatever his motive, we can now see that such viewpoints have been consigned to the wastepaper basket.

Examining the allegation

Let us examine this allegation in the context of the constitutional provisions.

Without prejudice to any unseen provisions expressly provided for in the articles, we would like to refer to the Articles dealing with Public Finance under the sub-heading “withdrawal of sums from Consolidated Fund”, applicable to the current situation:

Article 150 (3), “where the president dissolves Parliament before the Appropriation Bill for the financial year has passed into law, he may, unless Parliament shall have already made provision, authorise the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of three months from the date on which the new Parliament is summoned to meet.”

There are certain relevant issues for consideration according to these provisions:

1. The Constitution acknowledges that the president can dissolve it before a Parliament makes provisions for public expenditure;

2. President has the right to authorise the issue of funds from the Consolidated Fund;

3. President has the power for the expenditure of such sums for the public services as he may consider necessary;

4. President can continue to exercise this power from the date of dissolution up to the time of the election and for a further period of three months from the date the new Parliament is summoned.

It is clear why the Constitution makers have made this provision. The holding of an election and the return of members to a Parliament does not ensure the possibility of formation of a government. There can arise a situation where no party can form a government for want of a majority. 

We saw what happened in Germany recently. They took a couple of months after the election to form a government there. The horse deals have taken some time to reach consensus. Hence the constitutional facilitation of expenditure by the President without having to go to the Parliament.

The 19th Amendment was to further ensure the supremacy of the Parliament and reduce certain powers of the President. The additional powers that the Constitution under article 33 in respect of “duties powers and functions of the president” however, have been retained under the 19A. 

Art.33(2) reads, ‘in addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the president by the Constitution or other written law, the president shall have the power – (inter alia), under 33(2)(h) “to do all such acts and things, not inconsistent with provisions of the Constitution or written law, as by international law, custom or usage the president is authorised or required to do”.’

When a Parliament is dissolved the only way the president can be responsible to Parliament is by adhering to the laws which are invariably passed previously by the Parliament. 

Article 70(7) quoted above dealing with the convening of a Parliament at the discretion of the president addresses another issue. It states that the Parliament so convened stands dissolved upon the termination of the emergency or the conclusion of the General Election whichever is earlier. 

This shows that, even if reconvened it will be only for a specific purpose and not to deal with all sundries as contemplated by the Opposition. So in the most unlikely event, even if the Parliament is convened to deal with a situation that has not arisen so far, under 70(7), its authority according to the Constitution will be to deal with such a situation only. 

The Opposition however according to the views expressed publicly is waiting to regurgitate several concerns more in keeping with the political agenda. A strongly-divided Opposition and an impending election with groups confronting each other will hardly provide a sensible forum to discuss anything meaningful to the benefit of the country at large. So all in all it is going to be an extremely futile exercise. 

Behaviour of the Parliament

The speculation in the minds of the public is aggravated due to their experience about the behaviour of the Parliament while showing the majority during the last crisis. We saw how liberally the Speaker permitted a member from the Opposition benches to table a motion of confidence and/or no-confidence, pulled out from his pocket then and there.

According to Article 64(2), “the Speaker, D/Speaker, Chairman of Committees shall resume to continue to hold office while a reconvened Parliament is kept in session.”

We have to live with our fingers crossed to see what commotion things will lead to in the event of reconvening a Parliament with such a record.

While there is no specific provision in the Constitution to the contrary there is a provision expressly requiring that the Parliament should meet once at least during a period of one year. 

Article 70(2), “Parliament shall be summoned to meet once at least in every year.”

Article 70 (5) (a) requires the proclamation dissolving Parliament to fix a date for an election and the new Parliament to meet on a date not later than three months after the date of the proclamation. These requirements have been accomplished due to the Parliament making such a proclamation. However, the Election Commission which is empowered by the laws of the Parliament is authorised to postpone the date of the election. 

The COE is discharging the duties and powers entrusted upon them by the Parliament. As long as the COE is exercising powers and authority under the laws empowering him to act, there is nothing more anyone else can do. If the President orders the COE to act contrary to the law it will be a violation of his powers. He is also not required to issue any further proclamations fixing other dates except under article 70 (5) (c) where he is required to make a new proclamation to fix a new date for the summoning of the parliament, if it becomes necessary.

The prerogative of the President under article 129 (1) to consult the opinion of the Supreme Court has not arisen and the President can avail the power for consultative jurisdiction exclusively available to him if a necessity so arises. TV debates and social media promptings may not be of much use in this regard. Because the article reads as follows:

129 (1) “if at any time it appears to the president of the Republic that a question of law or fact has arisen or is likely to arise which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration…”

When it is said that ‘he may’ it will be only that way, despite what some say what they may think and feel or asked to say.

No sensible person will find fault with the President for allowing things to happen according to the law.

According to Article 66(h), “the seat of a member shall become vacant, upon the dissolution of Parliament:”

There is no Parliament now to introduce new laws. That will have to happen only after the General Election returns a new Parliament. Under these circumstances it is very difficult to understand the claim of the former Opposition to reconvene Parliament. For what purpose? Before dissolution there was a duly-appointed Cabinet of ministers. 

According to article 47(1) (after the 19A) the Cabinet of ministers after dissolution of Parliament;

“the Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall, notwithstanding such dissolution, continue to function and shall cease to function upon the conclusion of the General Election and accordingly, the prime minister and the ministers of the Cabinet of ministers, shall continue to function unless they cease to hold office… and shall comply with the criteria set out by the Commissioner of Elections and shall not cause undue influence on the General Election.”

Continuation of the caretaker Government is therefore constitutional. The Cabinet has to comply with the criteria set by the Commissioner of Elections and no one else. The Cabinet cannot exert any influence whatsoever on the General Election.

The Commissioner of Elections on the other hand has to exercise powers under the election laws of the country. Elections laws are passed by Parliament. Therefore, the Commissioner of Elections is exercising the powers bestowed on him by the Parliament. 

The President has to abide by the laws of the country in the discharge of his duties and functions. So when the COE is acting according to the law the supremacy of the Parliament is ensured. In the absence of MPs and a Parliament, only the laws of the country will have to operate. And that is what is happening now.

Under section 24(3) of the Parliamentary Elections Act no 1 of 1981, the COE is empowered to postpone the date fixed earlier by him to conduct the poll in the General Election; 

“24 (3) 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 published under subsection (1), the Commissioner may, by Order published in the Gazette, appoint another day for the taking of such poll, and such other day shall not be earlier than the fourteenth day after the publication of the Order in the Gazette.”

It is the date that was fixed earlier by the COE that was postponed. According to what is stipulated in the Act there is no need to refer to the proclamation by the President at this stage. Because COE has already acted according to the proclamation previously in announcing the date.

The need for a proclamation to be made by the President has been complied with and things will have to be taken forward there onward according to the legal provisions.

Flogging a dead horse

Under these circumstances we fail to figure out the storm in the teacup as made out by those clamouring to reconvene the dissolved Parliament. We also do not see any constitutional violations in the process so far. 

The Opposition is trying to flog a dead horse. It may be that by some chance if they can revive the Parliament there are many things they could resort to. With such odds against the First Eleven of the Opposition team, it has allowed the Second Eleven to play while they are watching.

The Government is already faced with the challenges from a strong opposition, much more dreadful than the parliamentary Opposition – COVID-19. It will be a sanctimonious act to resort to creating another opposition against the caretaker Government at this stage. Hence we pray that sanity should prevail in the name of humanity beyond all other sectarian and ostensible interests.