Balancing efficiency with law and liberty: Dealing with the pandemic without democratic backsliding

Wednesday, 8 April 2020 01:16 -     - {{hitsCtrl.values.hits}}

Any theory of political power that sees only the President and other arms of the Executive as being the sole decision-makers in this crisis is wholly inconsistent with the system of government and the values of democracy established by our Constitution. Sacrificing these checks and balances in the short-term will open the door to authoritarianism in the long-term



By Asanga Welikala and Suren Fernando

When a grave crisis like the coronavirus pandemic occurs, citizens expect the Government to respond swiftly, effectively, and efficiently to protect the public and mitigate the consequences. For this, they also readily recognise that the Government will need greater powers than in normal times. In a constitutional democracy like Sri Lanka, however, there is a further expectation that the cure must not be worse than the complaint. 

The Governmental response itself must not have the effect of eroding fundamental freedoms any more than is necessary, proportionate, and permitted by law. This is why our Constitution, like the constitutions of other democracies, anticipates the occurrence of public emergencies and lays down legal rules to govern those exceptional situations. The Government therefore has a constitutional obligation of the highest order that it will act according to, and within the authority of, the applicable law in every one of its actions in dealing with the crisis. Our Constitution does not give any excuse for any Executive act that is without a legal basis. 

It is because these matters are comprehensively provided for in the supreme law of the land that citizens can insist that the Government must act within the Constitution when dealing with the crisis. While the Constitution is certainly not a suicide pact that cripples the Government from doing what it must to protect the public, it is also not a blank cheque that gives the Government untrammelled power. 

The Constitution, rather, provides for a careful balance between the competing aims of security and freedom. It does so by setting out a legal framework that meets the requirements of efficiency (by equipping the Government with additional powers), as well as the requirements of democracy (by expressly setting out how, and to what extent, democratic freedoms can be restricted under the law).

It is this idea of balance that is crucial to any discussion about security and freedom in a democracy. It is what protects both our short-term physical wellbeing and safety, and the long-term quality of our life based on the values of democracy. It is also the means by which we, as rational citizens, can assess the performance of our Government during this crisis. 

In short, the extent to which we can see the Government acting efficiently while remaining within the clear authority and rules established by the Constitution and other relevant laws, is the measure of success. If the appropriate balance is not struck, then we risk harming our democracy and encouraging authoritarianism. Several weeks into the coronavirus crisis, it does not appear that the Government is getting this balance right. 

The curfew

There are sound public health reasons for isolating people to stop the spread of the virus. In Sri Lanka, the Government felt that an enforced curfew rather than a voluntary lockdown was necessary to ensure the public health aims were met. 

Despite the disruptions and difficulties, most people would not second guess the Government’s judgement on this issue. However, the curfew has been in force since 20 March 2020, and there is no certainty about when it will end. This is therefore in effect a lengthy, enforced, restriction on the freedom of movement, which is a fundamental right protected by the Constitution (and indirectly affecting other fundamental rights such as the freedoms of assembly, association, engaging in lawful occupations, and even expression). 

In its many announcements, the Government has not clearly cited any statutory provision as the legal basis of the curfew, but appears to have relied on the concept of a ‘police curfew’. The reason for this is clear. The applicable written laws – such as the Police Ordinance, the Quarantine and Prevention of Diseases Ordinance, the Code of Criminal Procedure, and the Sri Lanka Disaster Management Act – do not provide the Government with direct statutory authority to impose such a curfew. Section 16 of the Public Security Ordinance does grant the President limited powers to impose curfew, but an Order to that effect does not seem to have been gazetted (although the President has called out the armed forces to maintain public order under section 12 of the same statute, by a gazette notification of 23 March 2020)

However, while the concept of ‘police curfew’ does not have any statutory basis, it appears to have been generally accepted as a useful police power in maintaining the peace. 

But the necessary implication of a power with such a weak legal basis is that the legal system may acquiesce in its use when the use is relatively localised (usually limited to a local police jurisdiction), of very short duration (hours rather than days or weeks), and have a negligible effect on the fundamental rights of those affected. The use of police curfew in the case of the coronavirus crisis is clearly of a different order, both in terms of length and impact on rights. 

The Constitution, of course, allows fundamental rights to be restricted on various grounds. The coronavirus crisis would unambiguously fall within the types of situation in which restrictions can be imposed. But the common feature of all restrictions on fundamental rights is that the Constitution requires any restriction to be ‘prescribed by law’. This does not mean that the Government has to enact a specific law through Parliament every time a restriction is imposed; it means that any Executive action that has the effect of limiting a fundamental right must have a clear basis in law. The indefinite ‘police curfew’ since 20 March 2020 clearly does not have an adequate legal status to meet this constitutional requirement. 

The common way governments have imposed restrictions on fundamental rights during previous emergencies has been through Emergency Regulations. The Constitution and the Public Security Ordinance empower the President to make these legal rules during an emergency. They have the status of primary legislation and can override any law other than the Constitution. However, the President only acquires this law-making power when he has declared a state of emergency. 

The declaration of a state of emergency, even when it occurs at a time when Parliament has been dissolved, requires the immediate summoning of Parliament (Article 155(4)(i) of the Constitution). Perhaps because the President does not want to recall the dissolved Parliament, he has not declared a state of emergency. He has thus not availed himself of the power to enact Emergency Regulations, which could provide the necessary legal basis for an extended curfew. 

The General Election

The President dissolved Parliament on 2 March 2020, setting the date of the election for 25 April 2020, and the first meeting of the next Parliament for 14 May 2020. The normal term of Parliament is five years, but the Constitution permits the President to dissolve Parliament and hold a general election at any time during the last six months of a Parliament’s term. President Rajapaksa used this power to dissolve Parliament on 2 March 2020, six months ahead of the end of its term. If it had not been dissolved, the Parliament elected in 2015 would have ended its term on 1 September 2020. 

The proclamation of dissolution was made notwithstanding the threat posed by the coronavirus. The crisis within Sri Lanka worsened in the days after that, leading to calls to postpone the General Election and to recall Parliament to assist the Government in handling the crisis. The President has so far resisted the calls to recall Parliament by rescinding the Proclamation dissolving Parliament. Consequently, it was left to the Election Commission to announce on 21 March 2020 that the election could no longer be held on 25 April 2020 on account of the coronavirus crisis, and that it would announce a fresh date for the postponed election later. 

It also since been widely reported that on 31 March 2020 the Election Commission had written to the President suggesting that due to the coronavirus it would appear that the election cannot be held according to the legal timelines set in motion by the dissolution proclamation of 2 March 2020. These events have caused considerable confusion as to whether and when the elections will be held. Adding complexity to the confusion is the controversy over the Government’s consistent refusal to recall Parliament. 

When the President dissolves Parliament, the Constitution requires him to set a date both for the election and for the first meeting of the next Parliament (Article 70(5)(a) of the Constitution). The first meeting of the next Parliament must be a date within three months of the date of the dissolution. This date can be changed, but the new date must also be within the three-month period (Article 70(5)(c) of the Constitution). The underlying aim of these provisions is to ensure that elections are not indefinitely postponed and that a functioning Parliament is in place as quickly as possible. 

But what happens when a crisis occurs after Parliament has been dissolved? The Constitution and the Parliamentary Elections Act allow both the date of the election and the date for the first meeting to be varied. But they do not, under any circumstances, permit such rescheduled dates to be set beyond three months from the date of the original proclamation of dissolution. The three-month rule for the period in which the country may be without a Parliament is therefore absolute. 

Now, it may appear as if the Constitution is excessively rigid, and does not take into account serious emergencies like the coronavirus pandemic. When the need of the hour is to consider what powers and resources the Government needs to tackle the crisis, how appropriate is it to be bound by rules concerning an election (which the crisis necessitates postponement to meet the public isolation requirement)? 

But as we noted at the beginning, the Constitution is not a straightjacket, and it always balances the rigidity of its rules with flexibility elsewhere by setting out procedures to enable effective governmental action in a crisis. There are three courses of constitutionally sound action available to the President. 

Option 1: The Procedure under Article 70(7)

If an emergency of sufficient gravity arises after a dissolution of Parliament, the President can summon the dissolved Parliament. The recalled Parliament then meets until the termination of the emergency or the conclusion of the General Election, whichever is earlier. 

Option 2: The Procedure under Article 155(4)(i) 

If the President proclaims an emergency under the Public Security Ordinance after the dissolution of Parliament, that proclamation operates as a summoning of the dissolved Parliament. The recalled Parliament then meets until the termination of the emergency or the conclusion of the General Election, whichever is earlier.

The declaration of an emergency under Option 2 would also give the President the power to make Emergency Regulations. This would enable the President to intervene decisively while at the same time ensuring a proper legal basis to Executive action, unlike the opaque and ad hoc directions (such as ‘curfews’) through which the Government currently acts. 

Option 3: Rescinding the Proclamation of Dissolution

Options 1 and 2 may be sufficient if the crisis is likely to end well before 2 June 2020 (i.e., the last date at which, under the Constitution, the new Parliament must have its first meeting). This also presumes that a General Election can be held before that (and here, the holding of an election means an environment in which all aspects of a free and fair election are present, including an environment conducive to campaign rallies, door-to-door campaigning, etc.). It appears, however, that the Election Commission has now come to the conclusion that this will not be possible within the timeframe ending 2 June 2020. But this serves as a rigid timeframe only as long as the dissolution proclamation of 2 March 2020 remains in force.

The President can simply rescind his proclamation of 2 March 2020. The effect of this would be to bring the dissolved Parliament back to life, until the termination of its normal term on 1 September 2020. If the exigencies of the crisis demand that this Parliament must be kept in session until that time, then the election to the next Parliament can technically be held at any time between 1 September and 1 December 2020. This option therefore potentially buys time until the end of the year, if that is what is needed, to deal effectively with the pandemic. Needless to say, if the crisis abates earlier, and a conducive environment exists for the conduct of a free and fair election, the President can at any time issue a fresh proclamation with earlier dates for the election and the meeting of the next Parliament.

It is therefore clear that the Constitution provides ample scope for decisive action, while maintaining consistency with democracy. But for some it may not be immediately apparent why the Constitution is so concerned with the recall of Parliament even as it empowers the Chief Executive, the President, to lead the Government in tackling the crisis. There are both practical and normative reasons for this. 

The practical reasons are concerned with public finance and oversight of the Executive. The coronavirus crisis demands massive amounts of public expenditure to which the Government simply has no access without Parliament voting the funds. Because the Government did not present a budget before the dissolution of Parliament, even existing funds (thought sufficient before the full scale of the pandemic was known) will run out by 30 April 2020. 

While the President can charge expenditure to the Consolidated Fund for a period extending up to three months after the date on which the new Parliament is summoned to meet, this is only for basic purposes of providing public services, and maybe nowhere near what is required by the economic fallout of the pandemic. Parliamentary approval would also be required to make consequent increases to the debt ceiling. We have discussed these issues in a previous article (see The Daily FT, 31 March 2020). 

Likewise, the Constitution requires Parliament to be in session to oversee, on behalf of the people, the Executive’s use of emergency powers, its policies and plans for addressing the longer-term implications, and to approve any extensions to the period of emergency. These are checks and balances that are in place in any constitutional democracy.

At a deeper level, the Constitution provides for a republican form of government in which sovereignty is recognised as being inalienably vested in the people of Sri Lanka. The Constitution goes on to recognise that some of the attributes of sovereignty (or powers of government) are to be exercised by others, in trust for the people. The Constitution thus recognises that the three organs of government – the Legislature, the Executive, and the Judiciary – are all required in a functional democracy, even, or especially, during a crisis. 

Any theory of political power that sees only the President and other arms of the Executive as being the sole decision-makers in this crisis is wholly inconsistent with the system of government and the values of democracy established by our Constitution. Sacrificing these checks and balances in the short-term will open the door to authoritarianism in the long-term. 

(Asanga Welikala is a Lecturer in Public Law of the University of Edinburgh. Suren Fernando is an Attorney-at-Law of the Supreme Court.)