Laws are meant for rational application

Since what is expected of the President has thus far been done as contemplated in the Constitution read together with the Parliamentary Elections Act, it is now in the hands of the Election Commission to proceed as contemplated in the Constitution and the Parliamentary Elections Act, by continuing the election process already set in motion

It is a hard truth that the laws of the land cannot have explicit provisions to cater to every situation - the normal, the most abnormal and everything in between

By Nihal Jayawardene and Shamalie Gunawardana

The COVID-19 global pandemic has forced or compelled countries, organisations and even individuals to adopt different approaches or new methods for attaining the same goals. It has also created an opportunity to re-evaluate the current approach, procedures and even philosophies. It is therefore an opportune moment to rethink the approach and give the law a more purposive meaning for the greater good of the public.

By a Proclamation published in Gazette Extraordinary No.2165/8 dated Monday, 2 March 2020, the President exercising powers vested in him in terms of Article 70 of the Constitution, read together with Article 33(2)(c) of the Constitution and Section 10 of the Parliamentary Elections Act No. 1 of 1981, has dissolved  Parliament with effect from midnight 2 March 2020, fixed the date for the elections to be 25 April 2020 and fixed the date on which the new Parliament is to meet to be 14 May 2020.

This triggered the placing of procedural functions pertaining to the holding of Elections entirely in the hands of the Elections Commission, which is an independent institution set up by the 19th Amendment to the Constitution; it is the entity established for the purpose of implementing the election process at ground level. Accordingly, as envisaged in the Constitution and the Parliamentary Elections Act, the Elections Commission has proceeded to accept notices to contest the Election (Section 11), allocate and change symbols (Section 12), accept deposits (Section 16), accept/reject Nomination Papers (Section 19). The Elections Commission, having taken required steps including the above by the end of the “Nomination Period”, has proceeded to obtain reports required to be taken under Section 22, from officials appointed to conduct the preliminary activities of the election process.  

The Elections Commission having being satisfied that the Elections could be held on the day appointed by the President by the Proclamation referred to above, by Gazette Extraordinary No. 2167/12 dated Friday, March 20, 2020, has published a Notice under Section 24 (1) (a) and (c) of the Parliamentary Elections Act, which reads as – “(i).the election of Members of the Parliament in each of the Electoral Districts specified in the Schedule hereto, is contested; (ii). the poll will be taking place between 7.00 a.m. and 4.00 p. m. on 25th April, 2020 in each such Electoral District”, and that “matters referred to under Section 24 (1) (b) and (d) of the Parliamentary Elections Act No. 1 of 1981, will be notified by a separate gazette notification”.

Thereafter, the Election Commission by Gazette Extraordinary No. 2167/19 dated Saturday, March 21, 2020, has published an Order under Section 24(3) of the Parliamentary Elections Act which reads as – “(i). in terms of Section 24(1) of the Parliamentary Elections Act, the poll for the election of Members of Parliament from each of the Electoral Districts mentioned in the schedule hereto shall be taken from 07.00 a.m. to 04.00 p.m. on the 25th of April 2020, by the Notice published in Gazette Extraordinary No. 2167/12, dated 20th March, 2020, however, in terms of the powers vested in the Election Commission under Section 24(3) of the Parliamentary  Elections Act, the Election Commission hereby announces that the poll for the election in the Electoral Districts mentioned in the schedule below cannot be taken on the 25th of April 2020 due to the COVID-19 outbreak in Sri Lanka; (ii). it is further notified that the Election Commission will appoint a day coming after fourteen days from the 30th day of April 2020 as the day for the taking of the poll for the election of Members of Parliament for the said Electoral Districts and that the said date will be notified by a Gazette Notification in due course.”

Section 24 of the Parliamentary Elections Act

In this backdrop, it is pertinent to look at Section 24(3) of the Parliamentary Elections Act in terms of which Gazette Extraordinary No. 2167/19 dated Saturday, 21 March 2020, has been published. Section 24(3) states that – 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 Section 24(1), the Commission 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. 

Hence Section 24 (3) appears to mean to cater to a situation where the Election Commission is of the view that “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 Section 24(1), the Commission 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”. 

What is notable is that the Legislature has purposefully required – that such other day shall not be earlier than the fourteenth day after the publication of the Order in the Gazette – but has refrained from stipulating a date or time frame  within which that said “other day” shall be fixed,  to make the varying of the date more  meaningful since this Section is essentially meant to be exercised in the event of an emergency or an unforeseen circumstance that demands an element of reasonable flexibility. 

Article 70(5) of the Constitution

However, Article 70(5)(a) of the Constitution, stipulates that a Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Article 70(5)(c) of the Constitution stipulates that the date fixed for the first meeting of Parliament inter alia by a Proclamation under sub-paragraph (a), may be varied by a subsequent Proclamation, provided that the date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the original Proclamation. 

The three-month limitation imposed in Article 70 (5) (c) – “the date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the original Proclamation” – is meant to apply in the event the President wishes to vary the date/s set out in the original Proclamation using his prerogative rights. Further, what is also apparent is that it is meant to be exercised at the stage before the process of conducting Elections having been taken over by the Election Commission. Furthermore, in Article 70 (5) (c), there is no reference to such decision been made due to any emergency or unforeseen circumstances. 

It is pertinent to note that in exercising presidential prerogative, Article 70(6) of the Constitution recognises a deviation to the three-month limitation in the event the Presidential Election falls between the dissolution of the Parliament and the summoning of the first meeting of the Parliament, where the period between the dissolution and the summoning of the first meeting of the Parliament can take place within four months. 

Further, action under Section 24(3) of Parliamentary Elections Act by the Election Commission, coupled with a further Proclamation by the President under the Constitution, is also unlikely to defeat what is expected in Article 70(2) of the Constitution that the Parliament shall be summoned to meet once at least in every year.

From a different perspective in relation to Section 24(3) of Parliamentary Elections Act, although the Section narrates ‘any District’ in singular form, it can be extended to mean Districts, by applying the rules of interpretation that, when a reference is made in singular form it shall include the plural and vice versa (the other way round).  This rule of interpretation allows a purposive meaning to be given to Section 24(3) and Section 113 of the Parliamentary Elections Act.  

Article 70(7) of the Constitution stipulates that, 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 the 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. 

What is expected of the President

What is notable in Article 70 (7) is that the discretion is vested with the President through the use of the word ‘may’. Further, this Article has not been subjected to Article 70(5)(c) and /or stipulates a date or timeframe within which the next date is to be fixed. 

Since what is expected of the President has thus far been done as contemplated in the Constitution read together with the Parliamentary Elections Act, it is now in the hands of the Election Commission to proceed as contemplated in the Constitution and the Parliamentary Elections Act, by continuing the election process already set in motion through the issuance of Gazette Extraordinary No. 2167/12 dated Friday, 20 March 2020 and Gazette Extraordinary No. 2167/19 dated Saturday, 21 March 2020.

As such, in a situation where the Election Commission fixes an alternate date for poll as envisaged in Section 24(3) of the Parliamentary Elections Act, the President may issue a further Proclamation varying the date summoning the new Parliament, while giving cognisance to the new date of poll set by the Election Commission. 

Further, as per Section 113 of Parliamentary Elections Act, if at any time after the President has ordered or fixed the date for an election, it is shown to his satisfaction that in any electoral district owing to any cause whatsoever no election has been held in pursuance of such order he may at any time by notice in the Gazette issue another order that an election shall be held in that District. This Section supports the position that the President has an inherent power to ensure compliance with a constitutional process in terms of which a Parliamentary Elections shall be held, and accordingly the President may proceed to issue a further Proclamation as envisaged in the Constitution read together with the Parliamentary Elections Act.  

It is pertinent to note that as per Article 30. (1) of the Constitution the President is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces and it is obligatory upon him to preserve the right of the people, by enabling them to exercise their legislative sovereignty by electing their representatives to Parliament through parliamentary polls, as envisaged in Article 4(a) of the Constitution. 

One could argue that the constitutional and legal provisions demonstrate lacunas pertaining to matters noted above. Legal literature supports that when a country, society or time period is treated as “exceptional” – unusual or extraordinary in some way – the need to conform to normal rules or general principles may be relaxed, to the extent demanded. 

Application of constitutional exceptionalism and Doctrine of Necessity

It is a known fact that countries have resorted to the application of constitutional exceptionalism on many occasions such as in the aftermath of 9/11 and recent steps taken by the Parliament of India in relation to Jammu and Kashmir. The application of this principle has been resorted to on several occasions by successive Governments in Sri Lanka, including the exceptional mechanism adopted to extend the life of Parliament in 1978. 

It is also a known fact that the Doctrine of Necessity may also resorted to in extraordinary circumstances, based on which even extra-legal actions by state actors, designed to restore order, are deemed to be  constitutional. This doctrine has since been applied in a number of Commonwealth countries. The basis is that a deviation or a violation of a law to prevent worse harm is justifiable. We have witnessed the prior adoption of such a stance in Sri Lanka, in the aftermath of the 2004 tsunami in relation to issuing of death certificates, on prescriptive rights to land, etc.  

It is also worth noting that Constitutional Exceptionalism and the Doctrine of Necessity find harmony with Article 33(2)(h) of the Constitution, which empowers the President to do all such acts and things, not inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage the President is authorised or required to do. 

It is a hard truth that laws of the land cannot have explicit provisions to cater to every situation – the normal, the most abnormal and everything in between. The situation that our country is faced with against the backdrop of the COVID-19 pandemic is indeed a ‘black swan event,’ that was unpredictable and clearly extraordinary, demanding a degree of practical improvisation in giving meaning to laws.  What is important is to refrain from exaggerating the ‘normal nature of the normal,’ while realistically acknowledging the ‘exceptional nature of the exceptional’.

[Nihal Jayawardene LL.M (Lond.) is a President’s Counsel. Shamalie Gunawardana LL.M (U.K.) is an Attorney-at-Law and former Director General, Legal Affairs Department, General Treasury.]