Constitutional crisis? Lost game of the Second Eleven! A rejoinder to Rusiripala

Thursday, 14 May 2020 00:00 -     - {{hitsCtrl.values.hits}}

President Gotabaya Rajapaksa


By Janitha Devapriya

According to Wikipedia, the new coronavirus (COVID-19) pandemic, is an ongoing pandemic of coronavirus disease 2019 caused by severe acute respiratory syndrome coronavirus 2 (SARS CoV 2). The outbreak was first identified in Wuhan, China, in December 2019. 

The World Health Organization declared the outbreak as a Public Health Emergency of International Concern on 30 January, and a pandemic on 11 March. Countries like Italy, Iran and South Korea were severely affected followed soon by US, Britain and Germany with many countries of the world not far behind. 

As of 7 May, more than 3.94 million cases of COVID-19 have been reported in over 187 countries and territories, resulting in more than 275,000 deaths. More than 1.32 million people have recovered. Most of the countries affected had to impose semi or total lockdowns, halting economic activity in all sectors. 

The worldwide impact is enormous. The main stock markets took huge hits. World GDP contracted by 10%. In the US alone, 30 million seek unemployment benefits. Oil prices hit $ 20 a barrel with plummeting trade caused by hardest hit international air traffic, land and sea transport recording lowest operational frequency. Most of the robust economies of the world will go into recession. 

In Sri Lanka, the first COVID-19 infected case of a 44-year-old Chinese woman arriving from Hubei Province in China was detected on 27 January and the health authorities were compelled to take measures to prevent spread of the virus in terms of the WHO declaration of 30 January. The first Sri Lankan COVID-19 infected person was identified on 10 March. This was followed by arrival restrictions at BIA and other measures to curb possible spread. 

Despite all the measures taken, the spread of COVID-19 took hold gradually and as of 8 May, 835 persons have been infected and under treatment with over 200 discharged after recovery. No country or organisation has yet developed a medicinal drug to treat COVID-19 victims or a vaccine to prevent infection. It may take another six months or a year when the present research bears fruit and such vaccines or drugs being declared safe for humans. In this situation, it will take at least one year for people to resume normal lifestyles and activities. 

The Government had to hastily take decisions to completely lock down Colombo, Gampaha and Puttalam Districts with curfews, restricting movement of people within and semi lockdowns in other districts. Curfews imposed were lifted for brief periods in between. Economic activity and day today living in countries like Italy, Iran and South Korea were severely affected followed soon by US, Britain and Germany with many countries of the world added to the list. The affected numbers and death toll is staggering. 

The situation brought normal life to a complete standstill. Still the danger of the pandemic persists and the entire world economy is severely crippled with production and international trade virtually halted resulting in job losses and loss of income to millions of workers as well as for businesses, be it large conglomerates or small and medium scale establishments. 

A serious emergency situation

This is a very serious emergency situation worldwide and the focus should be on measures to curtail the spread of COVID-19 and extending high level of healthcare to affected victims and also providing cushions to families undergoing severe economic hardships as a result of losing their paltry daily wages or salaries. 

If one takes the current catastrophic impact of COVID-19 lightly, and try to pursue other agendas, such a person certainly is insane. Rusiripala states: “Some maintain that the country is heading towards another crisis amidst the COVID-19 pandemic.”  We have actually reached a huge financial crisis where the Government is desperately trying to make ‘ends meet’ and as one measure to mitigate the impact, the President’s Secretary is requesting State employees through their heads of institutions to refund or forego their May salary, at least half of it. 

When the Government appears to be in such dire straits, and the solutions cannot be found easily, all avenues have to be explored to overcome the crisis including support from political parties represented in the eighth Parliament. 

According to the Constitution, the Executive does not have a free hand to take money from the State kitty, the Consolidated Fund, as explained by experts. 

The situation if allowed to fester with indifference like what we witness from some of the caretaker ministers, we certainly are at the edge of a crevasse of not only a constitutional crisis, but also a humanitarian crisis of huge proportions. The COVID-19 pandemic is spreading, though not rapidly, thus increasing the number of victims every day with no sign of abating. The adverse impact is unpredictable.

Enormous economic impact

The magnitude of the economic impact is enormous. A main source of foreign exchange income to Sri Lanka is tourism. The decline in earnings from tourism may be between $ 100 m to $ 320 m, according to the ADB. 

There is a huge decline in orders to the apparel and garment sector. Major chain stores in Europe and America are recording negative growth in sales and would soon consider putting up shutters resulting in cancelled orders in our hands. In this scenario, some garment sector companies have sought Labour Department permission to lay off workers in large numbers, with possibly around 100 factories considering closing down. 

The employment prospects for Sri Lankan expatriate workers in the Middle East, Italy, Cyprus, Korea and Singapore are fast declining and many of them already in employment in those countries may be laid off and sent back. The impact of such a situation will be disastrous to our economy.

Dissolution of Parliament

The dissolution of Parliament in terms of authority vested with the President or at the expiry of the term of the eighth Parliament is not an issue though Rusiripala tries to give some weightage. At the time Parliament was dissolved, what really drove and tempted the Government to take that step was because, according to some key politicians in the ruling party, they felt that they had a distinct advantage to win the General Election because of disputes within the UNP, which at that time was in disarray. 

The ruling party wished to secure a two-thirds majority in Parliament to do away with certain restrictions on the executive presidential powers and the functioning of independent commissions that have brought in some positive democratic and good governance features to the administration. 

The favourite refrain of some of the ruling party personalities to justify an election at this time is that the Government is unable to provide relief to the ordinary people due to lack of a majority in Parliament. This is debatable. 

The Opposition parties are demanding that Parliament be reconvened in view of the magnitude of the serious effects of the COVID-19 pandemic on the lives of the people and the economy. They contend that the use of the Consolidated Fund is subject to constitutional provisions and should be under Parliamentary control in terms of articles, 148, 149 (1) and 150 (2) and (3). 

With the date of election still uncertain and the date for the first meeting of the new Parliament not being declared as yet, issues pertaining to the Consolidated Fund and the emergency situation can be sorted out by summoning the already-dissolved Parliament as provided in the Constitution. 

Funnily enough, some Government legislators like Dinesh Gunawardene called for debates for even trivial things, with one cynic saying, even if someone sneezes, he wants a debate when in the Opposition and why they are objecting to re-summoning of Parliament at a crucial time like this is baffling.

According to Rusiripala, “There is only one instance according to the Constitution where such a Parliament could be summoned to office after dissolution.” 

He quotes article 70 (7) of the Constitution which allows re-summoning of the dissolved Parliament if the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary. 

According to this, he goes on, “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.”

The problem with Rusiripala’s contention 

The problem with Rusiripala’s contention is that such a serious emergency situation where people’s lives are at stake (health) and the economy of the country is at a virtual standstill with no revenues from taxes, tourism which brought huge foreign exchange income ceased completely with no foreseeable revival in sight, income from foreign employment under serious threat, exports at minimum levels, no foreign funding other than for purposes of managing negative effects of COVID-19 in the country, no foreign investments on our debt instruments or stocks, investors foreign and local taking a back seat and numerous other issues that will put all Sri Lankans in serious peril without having an income to live , should be viewed as a major emergency.

In this crisis situation, the Government itself needing all inputs to take the country on the right track, summoning of Parliament should not be viewed as detrimental for the conduct of affairs and perhaps, it may prove to be a useful strategy. In many countries, crisis situations of this nature are handled with support and cooperation from the opposition. The Opposition parties in Sri Lanka too should stand up to national needs as they have vowed.

The main argument of Rusiripala is that “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 the ‘dissolved Parliament’.”

I am not sure whether Rusiripala is a Lawyer but all of us can express our opinions on the constitutional provisions as we understand them but without going into semantics. We should leave the final interpretation to the Supreme Court. 

What the Constitution says

Let us consider this argument further and starting from the beginning, since the Constitution is mentioned and quoted several times, we must know what the Constitution is. It is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity (country or state) organisation or other type of entity, and commonly determine how that entity is to be governed. Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, through their elected representatives. People are the source of all political power. Constitution is the supreme law. 

It is significant to note that in article 70, which empowers the President to summon, prorogue or dissolve Parliament, sub paragraph 5 (a) fixing a date for the election includes the provision for summoning of the new Parliament which says, ‘to meet on a date not later than three months after the date of such proclamation’. 

Even when Parliament stands dissolved by operation of article 62 (2) upon completion of five years, the proclamation fixing a date for election and summoning of new Parliament has specified, ‘to meet on a date not later than three months after the date of such proclamation’ and finally, under sub paragraph (c) it says, ‘The date fixed for the first meeting of Parliament by proclamation under sub paragraph (a) or (b) may be varied by a subsequent proclamation provided that the date fixed for the first meeting of Parliament shall be a date not later than three months after the date of the original proclamation.

When you consider article 150 (3) covering the charging of expenditure to the Consolidated Fund when Parliament stands dissolved, it says, “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.”

Two significant points

One can discern two significant points in both articles. First is that in article 70 and sub articles 5 (a) (b) and (c) it clearly imply by mention of three months in its content and that the State cannot function without Parliament (Legislature) for more than three months. It is buttressed by the mention of three months in article 150 (3) in respect of the Consolidated fund. 

The other important point to note in this article is that the President is empowered to withdraw funds from the Consolidated Fund if Parliament is dissolved before the Appropriation Bill for the financial year is passed into law (approved by Parliament) and that too for a period of three months from the date fixed for the new Parliament to meet. 

In this connection, learned counsel hold different views, some saying the Consolidated Fund cannot be utilised after 30 April because the Vote on Account passed by the previous Government covered the period only up to that date. 

The governing phrase in this article appears to be ‘before the Appropriation Bill for the financial year has passed into law’. 

According to one school of thought, there had not been an Appropriation Bill that was passed into law, in other words, there was no ‘Budget’ presented to Parliament, in which event the Consolidated Fund cannot be used. Another school of thought is that it can be done like what Rusiripala argues. 

As of now, there is no such date (first meeting of new Parliament) announced and the date fixed for the General Election, 20 June, is also not certain. 

In this scenario, what is prudent is to reconvene Parliament to sort out these wrangles and pass a fresh Vote on Account and collectively decide on a date to hold the General Election at a time more conducive to have a free and fair election. 

The other option is to seek the opinion of the Supreme Court with regard to the constitutionality of using the Consolidated Fund and how the General Election is to be held, in view of the serious situation with regard to the COVID-19 pandemic. The spread of the COVID-19 pandemic is unpredictable as of now and could possibly lead to alarming levels or may abate gradually but certainly now is not a suitable time to consider holding elections.

In conclusion, I will not take up any of the other arguments put forward by Rusiripala where he elaborates on the powers that the President can exercise. His comment on ‘behaviour of Parliament’ and conduct of the then Speaker is best left without comment because the people are aware of what happened. 

I am sure, as a person who had subscribed to the oath taken at the time of assumption of office, vowing to uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka, President Rajapaksa will not do anything contrary to the constitutional provisions or anything harmful to the country or its people. 

He will need to think carefully and decide to resolve the complicated issues by reconvening the dissolved Parliament or referring the contentious issues concerning the constitutionality to the Supreme Court, which will weigh the various arguments and representations rationally and deliver a judgement that is rational, equitable and in the best interests of the people of this country.