The President delayed taking action against the virus until the nominations were concluded
We have a virtual Minister of Defence and a virtual state of emergency and the Government is trying to have a virtual election while the healthcare workers, Armed Forces and the Police are doing a great job in an operation against COVID-19 virus, once again with the direction of the Government.
The President dissolved the Parliament on 2 March and the General Election was scheduled on 25 April amidst the spread of COVID-19 virus internationally. The new Parliament was scheduled to meet on 14 May. At the SAARC leaders meeting held on 15 March, the President declared that the election would be held at the scheduled date. Several ministers also supported the idea that the elections would be held as usual.
Accepting of nominations started on 12 March and concluded on 19 March. Soon after the conclusion of accepting the nominations, the Chairman of the National Election Commission (NEC) declared that the elections would be postponed indefinitely. A Gazette notification to this effect was issued by NEC on 21 March.
The Chairman of the NEC has written to the Secretary of the President on 1 April stating that according to the Constitution the Parliament should be summoned latest by 2 June and in order to meet that requirement the elections should be held by 27 or 28 May and the preparation for the poll should be commenced by 20 April at least. The Chairman requested the Secretary to bring this situation to the attention of the President saying it would be most suitable for him to promptly seek guidance form the Supreme Court in this regard.
Article 70 (5) (a) is as follows. “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.”
Secretary to the President responded to this letter on 6 April and stated as follows:
“As per the advice by His Excellency, it is not possible at this point of time to state that the election cannot be held on or before 28.05.2020. The date for fixing the poll is the responsibility of the Election Commission and His Excellency has no wish to interfere with duties and obligations of the Election Commission.”
“I need hardly emphases that it is the right of the people of this country to exercise their franchise, which their sovereign right.”
“In the total circumstances set out hereinbefore, I am instructed to inform the Election Commission that the question of Reference to the Supreme Court in terms of Article 129 of the Constitution does not arise.”
The Secretary says that the election can be held on or before 28 May.
It should be noted that the World Health Organisation (WHO) declared that the outbreak was a public health emergency on 20 January and that it can be characterised as a pandemic on 11 March, prior to the meeting of the leaders of SAARC.
The WHO Director General said. “Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death. We have never before seen a pandemic sparked by a coronavirus. This is the first pandemic caused by a coronavirus. And we have never before seen a pandemic that can be controlled, at the same time.”
COVID-19 is a dangerous virus which has taken 119,000 lives world-wide so far with 1.92 million active cases.
The President delayed taking action against the virus until the nominations were concluded. At the beginning of that week a public holiday was declared followed by few days of ‘working at home’ while ensuring that the officers related to the nomination process were at work. Island wide curfew was declared on the following day of the conclusion of nominations, 20 March. From that day onwards curfew was extended throughout the country with lifting the same for short durations. Now Western Province and Jaffna District have indefinite curfew and in other districts it gets lifted for 10 hours every few days, allowing people to buy essential goods.
The President appointed the Army Commander as the Head of the National Operation Centre for the prevention of the spread of COVID-19 on 17 March. This appointment was not gazetted and the terms of reference was not published. The identities of the other members of this operation centre are not known. Based on its website it appears to be that the task of the centre is the management of the quarantine process.
A Presidential Task Force was appointed on 26 March and it was gazetted (No. 2168/8), members were nominated, and terms of reference was identified. The focus of the Task Force was management of food supply and various administration work. It has nothing to do with the management of the virus- related issues. It was heard that there is a technical task force, but its members are not known.
In its operations the Task Force has decided to close the economic centres, which affected the farmers and hampered the delivery of vegetables throughout the island. The economy is at standstill. Daily wage earners are in dire consequences. The operation is like that of a war of which the sole target is to eradicate the virus as early as possible. These are good intentions but there are side effects as well. Many countries in the world are very conscious of their economies as well. They try to manage carefully the pandemic and the economy.
It appears to be that the epidemiologists who are trained to handle epidemics are not in the forefront and they are not in control. The best example is that on 11 April it was reported that it was made mandatory to use face masks when people are going out but in the website of the Epidemiology Unit of the Ministry of Health it is clearly states that it is not necessary.
Having delayed the starting of the process of combating the virus until the nominations were concluded, the President, after issuing the letter to the Chairman stating that the elections can be held by 28 May, now started giving signals that the situation will be eased by that time. On April 11 it was decided that the second school term will be started on 11 May. On 12 April it was decided that the universities would be re-opened for staff on 4 May, for final year students on 11 May and for all students on 18 May. What is the basis of fixing these dates? What is the contribution of epidemiologists on deciding of the dates? It appears to be that these days are fixed to be in line with the possible election date indicated to the Chairman of the NEC, 28 May.
This is a dangerous game indeed. Every day there are new patients reported. At the time this article was being written the total number of patients had passed 230. The World Health Organization has clearly said that the relaxation of the measures taken to combat the virus should be slowed down by stages and they warn that ad hoc relaxations would lead to another pandemic. It would be too early to set the deadlines now. However, it would be great if the deadlines can be achieved.
An election cannot be held under these circumstances and in this type of rush.
The argument of the Secretary that the people should be allowed to use their franchise, was brought in during the time when the former President dissolved the Parliament illegally in October 2018 as well. Supreme Court held that adhering to the constitution was the best way to maintain the sovereignty.
Many writers illustrated provisions of the Constitution to re-convene the Parliament in this grave hour and the dire necessity of doing so. If the Parliament is convened the problem raised by the Chairman of the NEC may be solved based on the legal provisions. In addition to that several other problems such as overseeing the process of combatting the virus and approving necessary finances to run the country and to combat the virus, can be solved.
On 20 February, at the last date of the Parliament sessions, the Leader of the House wanted to bring a motion to get the approval of Government expenditure and to raise the borrowing limit. According to the Leader of the Opposition, at the Party Leaders meeting, the Opposition supported to approve the expenditure and opposed to raise the borrowing limit. It was recorded in the Hansard. However, the Leader of the House withdrew the whole motion and he proposed that the next session of the Parliament would be 3 March. On 2 March Parliament was dissolved. The President in his address to the nation mentioned that the Government was not able to get the expenses approved in the Parliament and hence he has dissolved it.
In the last paragraph of the response the Secretary stated that the referring the matter to the Supreme Court does not arise.
The Chairman of the NEC has written to the President, I believe, under Article 33 (1) (d) which is as follows.
“It shall be the duty of the President to, on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.”
Therefore, we are back to square one.
As discussed, I believe that the entire operation handling COVID-19 is interwoven with the holding of the elections. It is the duty of the President and the Government to find a way out to this constitutional deadlock rather than trying to hold the elections amid the COVID-19 crisis.
It is the duty of the Opposition political leaders to give an assurance to the Government that they will support to pass the necessary laws and approvals needed in this grave hour if Parliament is summoned and to support to solve the constitutional deadlock.