The way forward – Part II

The very words used by the Legislature is as such, that unless the President – who is democratically elected by the people at a presidential election – himself is satisfied that such an emergency has arisen, no court or tribunal or other institution is empowered to impose upon the President to re-summon the Parliament which had already being dissolved, which in turn had so dissolved in order to have fresh election to elect a new Parliament

Provisions when the election cannot be held

Section 24(3) of the PEA, specifically provides that where, due to any emergency or unforeseen circumstances the polls for the election in any electoral district cannot be taken as scheduled, the Commission may, by order published in the Gazette, appoint another day for the polls. It further states that such other day shall not be earlier than 14 days after the publication of the Gazette. Thus it is clear that, the Legislature at its wisdom, had made ample provisions to deal with emergencies and unforeseen circumstances, and in such an event both electors and the contestants are not being prejudiced or the democratic process is not hampered thereby. 

As at present, due to the COVID-19 outbreak, the election may not be held in any district. However by necessary implication and due to the operation of an elementary rule of statutory construction, which says that the singular includes plural and visa-versa, the provisions contained in Section 24(3) provide statutory cover for the holding of general elections in all the electoral districts at a future date, after the dangers imposed by COVID-19 are over or controlled satisfactorily. 

Election Commissioner’s letters to the President and the response thereof 

It was extensively reported in the media, that by communications dated 31 March 2020 and 1 April 2020, the Election Commission had requested the President seek a determination from the Supreme Court on conducting the general election, owing to the current situation concerning COVID-19. The Election Commission had apparently said that failing to convene Parliament on time if the pandemic continues would create a constitutional crisis. It is also reported that the Commission had also considered the opinions of health experts, and said that it was unlikely the coronavirus could have been contained by April. 

The Commission further stated that all those involved in the election process, and the state officials, should be able to execute their duties without any fear. 

Article 129 of the Constitution deals with the subject of consultative jurisdiction of the Supreme Court. It states that: “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 nature and of such public importance, that it is expedient to obtain the opinion of the Supreme Court upon it, the President may refer that question to the Supreme Court for consideration, and the Court may, after such hearing as it thinks with, within the period specified in such preference or within such time as may be extended by the President, report to the President its opinion thereon.”

It is reported that the President’s Secretary by his communication dated 9 April 2020 responded to the said communication.

The President’s Secretary, whilst referring to the Proclamation dissolving Parliament, nomination period, handing over nominations, acceptance of deposits, etc., and also referring to the Gazette Notifications dated 21 March 2020 issued by the Commission (stating that the election cannot be held on the 25 April 2020 due to COVID-19 outbreak), brought its attention to the provisions of the Section 24(3) of the PEA, and hence stated that circumstances have arisen for the said Election Commission to nominate a fresh date for polls. 

By the said communication, the Office of the President also emphasised the fact that it is an inalienable right of the people to cast their vote at the election, and invited the Election Commission to act as provided for in Section 24(3). Further, it also stated that there is no necessity to seek the opinion of the Supreme Court in respect of this matter. 

The reason not to hold the election as scheduled was due to the COVID-19 outbreak in Sri Lanka, and thus constitutes an emergency or unforeseen circumstances due to which the election for the electoral district or districts of which it was to be held cannot be taken on the day specified in the notice of poll mentioned in Section 24(1) of the PEA. Thus, it is essentially a health related issue involving the public health. 

As extensively reported in the media, party leaders and the candidates alike agreed that, due to COVID-19 the general elections cannot be held until such a time it is safe to do so. The health authorities, led by the Director-General of Health and the Government, should ensure that circumstances are improved to conduct the election. 

Thus, it is legally correct for the Election Commission to decide not to hold the election as scheduled but to nominate a fresh date for poll, which now stands as 20 June 2020. 

Thus it is clear that the Office of the President cannot be blamed in deciding that no question of law or fact has arisen to seek the opinion of the Supreme Court.

Fresh date for poll on 20 June 2020 

By issuing a further Gazette Notification bearing No.2172/3 dated 20 April 2020, the Election Commission, whilst stating that the Parliamentary Election cannot be held on 25 April 2020, further notified that the same shall now be held on 20 June 2020. This fact was amply communicated to the general public by the members of the election commission when they held a press conference at that time. 

Lockdown/curfew notices 

By specifically issuing media statements from 11 March 2020 onwards, the President sought public cooperation in fighting COVID-19. They were issued subsequent to the discussions held at the Presidential Secretariat attended by, among others, specialists and experts on the future measures to be taken with regard to the COVID-19 pandemic. 

Thereafter by issuing a further media statement on the 13 March 2020 under the heading, “Concrete decisions to prevent spread of COVID-19”, among other things, the Presidential Secretariat announced that it had established a task force (National Operation Centre for Prevention of COVID-19) to spearhead control of the outbreak. Further it announced that it introduced a quarantine period for Sri Lankans arriving from abroad, minimised public gatherings and decided to study China’s success in dealing with the pandemic etc. Soon thereafter inbound flights were suspended and every passenger arriving from abroad had to be quarantined.

By issuing a further press release on the 19 March 2020 under the heading, “March 20-27 declared as work from home week”, the Government declared both public and private sectors work from home, and specifically stated that such are not public holidays. 

The nomination period by then was over and concluded. 

By issuing a further press release dated 20 March 2020, the Presidential Secretariat announced that an islandwide curfew had been imposed with effect from 8 p.m. to 5 a.m. which was then to be further extended over the coming weeks. 

By issuing a further press release, districts such as Colombo, Gampaha, Kalutara and Puttalam, which had been identified as high risk zones in view of the spread of COVID-19, were declared as areas in which curfew was in operation throughout the day. Later, further districts were either added or released from the said list of districts. 

By issuing a further press release on 1 May 2020, the Presidential Secretariat announced that whilst the curfew which was imposed on the districts of Colombo, Gampaha, Kalutara and Puttalam were in operation, the resumption of civilian life and state and private sector activities would begin from Monday 11 May 2020. It was reported in the media that in other districts, generally, the curfew was to be imposed at 8 p.m. every day and was to be lifted at 5 a.m. the next day. However by issuing a further press release, during the Vesak festival season an islandwide curfew had been imposed, which was to be lifted at 5 a.m. on Monday 11 May 2020.

However, on the night of Sunday the 10 May 2020, it was further announced that the curfew in Colombo and Gampaha districts would continue until further notice, whilst curfew in all other districts, including Kalutara and Puttalam, would be lifted at 5 a.m. and re-imposed at 8 p.m. daily, until further notice. 

Declaring a public holidays during the nomination period 

As stated above, the Minister of Public Administration, Home Affairs and Provincial Councils and Local Government, by issuing an Order under Section 10(1)(a) of the Holidays Act No. 29 of 1971, declared, “Monday 16 March 2020 a public holiday, to support the quarantine process on coronavirus”, and further stated the same shall be extended if necessary.

By issuing a further order dated 17 March 2020, the said Minister declared 17, 18 and 19 March as public holidays to support the quarantine process on coronavirus.

It was reported in the media that certain sections of the society and polity had an issue with the imposition of or declaration of public holidays during the nomination period, which fell in between 12 March and Noon on 19 March 2020. 

It is no doubt that the government has taken certain measures to eradicate and to control the spread of COVID-19 by implementing measures, as published by media and experienced by the general public of this country. 

In that setting I now proceed to examine the provisions that contained in the proviso to Section 10(2) of the PEA, which makes provisions in the following manner: “…and if, after the publication of the Proclamation or Order referred to in subsection (1) (the nominations period and the date of the poll), the day specified in such Proclamation or Order is declared to be a public holiday, such declaration shall in no way effect the validity of anything done on such day for the purpose of taking the poll.”

There, statutory provisions are an ample testimony to establish that such subsequent declaration of a public holiday will have no adverse effect on the validity of the poll, which is yet to happen in the future. In any event it was widely reported in the media that, when the advice was sought from the Attorney General by the Election Commission, the advice had been so given to go ahead with the poll as the nominations have already been accepted and no objection had been raised at that time with regard to the same. 

Changing the date of poll due to the outbreak of COVID-19

The President dissolved Parliament by issuing the Proclamation as envisaged in Article 70(5)(a) of the Constitution, and nominated the date for the New Parliament to meet. The independent Election Commission decided, that due to the outbreak of COVID-19 in Sri Lanka, there was no basis on which to hold the poll, and subsequently nominated another date to conduct it. It is obvious that, if the outbreak situation is forthwith eradicated completely or controlled in a manner where normality can be achieved in day-to-day civilian life, no election related activities such as campaigning is hampered with. On the contrary, if this outbreak continues, it is obvious, that the poll cannot be held even on the said re-scheduled day of 20 June 2020. 

20 June is clearly a date beyond the three months period envisaged by Article 70(5)(a) of the Constitution. Similarly, if another subsequent date has to be so nominated, such too would clearly be a date beyond the three months period envisaged by the Legislature. 

Skilful drafters of the Constitution, in their wisdom, may have included Article 70(5)(c), which specifically provided for the variance of the date originally fixed for the first meeting of the Parliament by the (original) Proclamation mentioned above, which should be done by way of a subsequent Proclamation. However the drafters, in their wildest dreams, would never have even imagined that Sri Lanka will have to face this type of situation due to a contagious disease, one which has spread across almost the entire world, and that the conductive environment would not be there to conduct the poll as originally intended, thus making it impossible for Parliament to meet within the three month period as originally intended. When they drafted the proviso to the said subsection (3) placing the said limitation of three months period thereat, it’s beyond anyone’s imagination that due to a health related pandemic, the country would have had to be locked down almost completely. 

This proviso is so obvious that even the highest court of the land may not be in a position to alter, amend or nullify such provision, as it does not have the power or authority to so. Further it is also common ground that Legislature cannot imagine all the possible scenarios that will happen in the world and make provisions remedying such. 

In this setting when one looks at the scheme of the Constitution along with the provisions of the Parliamentary Elections Act, it is crystal clear that they are mandated to give effect to the exercise of sovereignty and the use of franchise at a timely held elections. At a time if the general election cannot be held as scheduled and will have to be postponed due to the spread of COVID-19, it is not at all illegal to change the date of poll once again. 

Additional constitutional provisions as contained in Article 33(2)(c)

There is a presumption that, ‘Legislature is deemed not to waste its words or to say anything in vain’- page 208 of Bindra’s Interpretation of Statute, 12th edition, a publication of LexisNexis.

In this setting the writer is compelled to refer to the constitutional provisions of Article 33 now stands as amended by the 19th Amendment. Article 33 is of duties, powers and functions of the President. 

In Sub Article (2) (c) of Article 33, the use of very specific words are obvious, which reads as follows: “…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 .. (c) to summon, prorogue and dissolve the Parliament.” 

The Legislature, when enacting these constitutional provisions by way of recent amendments to the Constitution, was well aware that there are other constitutional provisions dealing with the summoning of, prorogation of and dissolution of Parliament, and in fact was well aware of the constitutional provisions contained in Articles 70(1), 70(5)(a) and 70(5)(c) of the Constitution. Thus, with that knowledge and wisdom, the Legislature would have thought it fit to introduce such an additional constitutional provisions as contained in the aforementioned Article 33(2)(c), to deal with and to make remedy to such unforeseen circumstances. 

Thus it is said that in the name of the democracy and for the wellbeing of the democratic policy and institutions, such additional constitutional provisions, by necessary implications of the Rues of Interpretation of Statues, can be interpreted to overcome the present situation. Namely, in holding the general election on the 20 June 2020, or any subsequent date to which same shall be postponed, and to summon the New Parliament to meet to transact its business. 

Whether the Parliament which had been dissolved, should be summoned?

There are two specific provisions contained in the Constitution relating to the re-summoning of the dissolved Parliament, pending election. They are the Article 70(7) and Article 155.

Article 70(7) comes under Chapter XI, dealing with the subject of procedure of powers of Legislature and in particular of the sessions of Parliament. In order to re-summon such dissolved Parliament (which would stand dissolved upon the termination of the emergency or the conclusion of the general election, whichever is earlier), the President should be satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary. 

The very words used by the Legislature is as such, that unless the President – who is democratically elected by the people at a presidential election – himself is satisfied that such an emergency has arisen, no court or tribunal or other institution is empowered to impose upon the President to re-summon the Parliament which had already being dissolved, which in turn had so dissolved in order to have fresh election to elect a new Parliament. 

What has arisen today, in the world and in Sri Lanka, is a contagious disease, which is essentially a health related issue of the general public. The President elected by the people and the current Cabinet of Ministers, which together forms the Government which is in charge of the Republic, has been implementing measures to eradicate the said disease under the provisions of, or as provided for in, the Quarantine and Prevention of Disease Ordinance (Chapter 222) and the Contagious Disease Ordinance (Chapter 223), and the Regulations made thereunder. It is suffice to say that these have, together formed ample legislative cover to deal with such an issue. In doing so, the whole world is supportive of Sri Lanka together with the specific agency of the United Nations, namely the World Health Organisation.

Therefore necessity to re-summon the dissolved Parliament under Article 70(7) shall not arise nor is it warranted. 

Further the aforementioned Article 155(4)(i) which is contained in Chapter XVIII, is under the heading of Public Security. This Chapter deals with the power of the President to make emergency regulations by Proclamation, issuance of which if done, after the dissolution of Parliament, to operate as re-summoning the Parliament, etc. 

As the President has not availed himself the provisions of the said Article 155 by promulgating such intended emergency regulations, the necessity to re-summon the dissolved Parliament under these provisions shall not arise.

(The writer is a President’s Counsel.)