DEAD OR TRANQUILISED? THE RECALL OF DISSOLVED PARLIAMENTS

Photo courtesy News in Asia

ASANGA WELIKALA-05/23/2020

The COVID-19 crisis took hold in Sri Lanka at a time when Parliament stood dissolved ahead of a general election. The gravity of the public health emergency, and what it demands in terms of the governmental response, seems to engage those provisions of the Constitution that require the President to temporarily recall the dissolved Parliament. I have discussed these issues elsewhere (with Suren Fernando, see here and here. For the background to the dissolution power in our semi-presidential system, see here). In short, the Constitution requires even a dissolved Parliament to be recalled in an emergency to fulfil the requirements of legislative oversight of the executive (including the exercise of any emergency powers), and to approve appropriations of public funds for government expenditure. The President, however, has steadfastly refused to do so. Coupled with this refusal, the practical inability to hold an election during the pandemic has resulted in the Election Commission having to set 20 June as the new date for the election. This is a date that is prima facie in breach of the constitutional stipulation that an election must be held, and a new Parliament must meet, within three months of the date of the dissolution of the old Parliament. This is currently the subject of legal challenges by political parties and civil society groups in the Supreme Court.

One of the issues in contention in current public debates is the legal effect of a dissolution of Parliament. Those who support the President’s position argue, among other things, that the effect of dissolution on a Parliament is the same as death in a natural person. Just as much as a dead person cannot be brought back to life, they argue, a dissolved Parliament cannot be recalled. In meeting this argument, opponents of the President’s position argue that the appropriate metaphor to illustrate the constitutional provisions on this issue is not death but tranquilisation. Dissolution has the effect of tranquilising an existing Parliament until such time as a new Parliament is brought to life through an election. Presumably, the old Parliament only dies when the results of the election are declared, or when the new Parliament formally meets for the first time. Whatever the literary merits of the metaphor, this is the obviously correct way to view the constitutional framework. As the table below shows, not only does the current Constitution expressly contemplate the recall of a dissolved Parliament in an emergency, but it is also a principle that has been recognised in all three constitutions we have had since independence. The recognition of the principle is reinforced by the fact that all three constitutions have also laid down a similar, and relatively detailed, procedure for the recall of a dissolved Parliament in an emergency. Moreover, the principle is one that is widely recognised in Commonwealth constitutions that are comparable to Sri Lanka.

nka.   Genealogy of Constitutional Provisions on the Recall of Dissolved Parliaments since Independence THE RULES 1.     Dissolution terminates the term of a Parliament, unless it is recalled due to an emergency 2.     The period in which Parliament can stand dissolved is temporary and short   1946-7 Constitution   1972 Constitution   1978 Constitution Normal Term of the Legislature Senate: Permanent body, legally unaffected by dissolution of Parliament (s.8(2)) National State Assembly (NSA): 6 years from the date of the first meeting, unless sooner dissolved (s.40(1)) Parliament: 5 years from the date of the first meeting, unless sooner dissolved (art.62(2)) House of Representatives: 5 years, unless sooner dissolved (s.11(5)) Constitutional Actors in Dissolution Governor General acting on the advice of the Prime Minister (s.15(1) read with s.4(2)) President acting on the advice of the Prime Minister (s21(b) read with s.27(1)) In the first 4 years and 6 months of Parliament’s term: President on the request of Parliament (art.70(1)) In the last 6 months of Parliament’s term: President acting alone (art.70(1)) Dissolution by Operation of Law Expiry of 5 years from the date of the first meeting (s.11(5)) NSA stands dissolved on the expiry of 6 years, and the dissolution is a ‘statutory direction’ for the election and the meeting of the next NSA to be held within 4 months (s.41(7)) The expiry of 5 years from the date of its first meeting operates as a dissolution of Parliament (art.62(2)) Early Dissolution At any time during the term of the House of Representatives At any time during the term of the NSA In the first 4 years and 6 months of Parliament’s term: President dissolves on the request of Parliament by a resolution passed by a 2/3rd majority (art.70(1)) In the last 6 months of Parliament’s term: President can dissolve at any time within this period (art.70(1)) Legal Requirements of Dissolution Proclamation of dissolution must set date of election and summon new Parliament to meet no later than 4 months from date of dissolution (s.15(4)) Dissolution by operation of law:  the President in consultation with the Prime Minister must fix dates for the election and meeting of next NSA within 4 months of the date of dissolution (s.41(7) Dissolution by operation of law: President must ‘forthwith’ issue Proclamation to set date of election and summon new Parliament to meet no later than 3 months from date of dissolution (art.70(5)(b)   Early Dissolution: Proclamation of dissolution must set date of election and summon the new NSA to meet no later than 4 months from date of dissolution (s.41(6)) Early dissolution:  Proclamation of dissolution must set date of election and summon new Parliament to meet no later than 3 months from date of dissolution (art.70(5)(a)) Duration of Permitted Hiatus between Parliaments (Absolute Rule in all three Constitutions) 4 months 4 months 3 months   THE EXCEPTION 1.     A dissolved Parliament can be recalled in an emergency 2.     The recalled Parliament sits for a flexible but limited period Recall of Dissolved Parliament due to an Emergency If at any time after the dissolution of Parliament the Governor General is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary, then the dissolved Parliament is summoned and kept in session until meeting of new Parliament (s.15(5)) If after dissolution an emergency is declared under s.134(2), the proclamation of emergency acts as a summoning of the NSA. The NSA so summoned kept in session until the termination of the emergency or the conclusion of general election, whichever is sooner, and thereupon stands dissolved (s.40(2)) 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, then the dissolved Parliament is summoned and kept in session until the termination of the state of emergency or the conclusion of the election, whichever is sooner (art.70(7)) If the President declares a state of emergency under art.155 of the Constitution and the Public Security Ordinance after Parliament has been dissolved, the Proclamation of emergency operates as a summoning of Parliament, and the Parliament so summoned is kept in session until the state of emergency is terminated or the conclusion of the election, whichever is sooner (art.155(4)(i) The legal effect of dissolution in our Con

The legal effect of dissolution in our Constitution can be expressed in the form of a rule and an exception. The general rule is that dissolution terminates the term of a Parliament, subject to one exception. The general rule is reinforced, expressly and unqualifiedly, by the rule that the maximum gap between Parliaments is three months (reduced from four months in the two previous constitutions). The only exception to the general rule is the occurrence of an emergency at a time when Parliament stands dissolved, when it is permitted to recall the dissolved Parliament. At the same time as all post-independence constitutions have recognised the executive as the leading actor in responding to a crisis, and equipped the executive with additional powers to do so effectively, they have also contemplated the recall of even a dissolved Parliament. The underlying rationale for both the general rule, and the sole exception to it, stems from the same principle: the norm of accountability central to all constitutional democracies.

The quality that distinguishes constitutional democracy from every other system of government is accountability. Governing institutions must be horizontally accountable through checks and balances between the three organs of the state, and vertically accountable to citizens through not only elections and fundamental rights but also through processes of good governance. Accountability is ensured only if there is a functioning framework both to hold executive decision-makers responsible before the legislature and the courts, and to impose meaningful sanctions when they fall below expected standards. Thus, the three-month rule in relation to dissolution is there to ensure that the period in which there is no functioning Parliament – for the necessary purpose of periodic elections – is very short and cannot be extended. This is an expression of the principle of vertical accountability.

Similarly, the exception whereby a dissolved Parliament must be recalled in an emergency is there to ensure checks and balances. This is an instance of the principle of horizontal accountability.
If the underlying aim of the constitutional framework governing the recall of dissolved Parliaments in an emergency is the realisation of these values of constitutional democracy, then the President’s refusal to exercise the power to recall has to be seen as contrary to those values. Much is often made of the fact that this is a power – both in the assessment of the nature of the emergency and in deciding whether or not to recall – vested in the President in such terms that he may exercise it purely at his subjective discretion and without any legislative or judicial review. Proponents of this type of argument should pause to consider the deeper implications of this approach for the fabric of Sri Lankan constitutional democracy.

Neither ultra-statist arguments that promote presidential authoritarianism nor ultra-liberal ones that seek to extinguish any scope for necessary executive discretion are appropriate in this regard. The key to a judgement defensible on grounds of constitutional democracy in relation to the recall of a dissolved Parliament is the balance between efficiency and accountability that is reflected in our present and previous constitutions. It is an approach widely shared in the Commonwealth, with the principle underpinning the two procedures established in our Articles 70 and 155 for the recall of a dissolved Parliament being recognised in some form in many countries including most of the Commonwealth Caribbean, Bangladesh, Malta, Mauritius, New Zealand, Singapore, Tuvalu, and Vanuatu. In India, the Rajya Sabha – a permanently continuing second chamber like the Senate under our 1946-7 Constitution – performs the role of oversight over the executive when the Lok Sabha is dissolved until such time as the latter can meet.

The Commonwealth also provides some cautionary examples. The racial riots in Malaysia in May 1969 – comparably historic to our Black July 1983 – occurred at a time when Parliament had been dissolved and the electoral process yet to be completed. Instead of summoning Parliament as soon as practicable as required by the Constitution (a provision since repealed), the government embarked on an “executive dictatorship” which lasted 22 months – and left indelible scars on the subsequent character of Malaysian constitutional democracy. In a very different way, the United Kingdom, the source of most of the constitutional traditions in the Commonwealth, does not have any express legal provision for the recall of a dissolved Parliament in an emergency, although statutory provision is made for the recall of a prorogued Parliament. While like in India the House of Lords would be expected to take the lead in executive oversight where the House of Commons stands dissolved in an emergency, it may also be possible to use reserve powers under the royal prerogative to fill the gap in case of the necessity arising. Perhaps not since the constitutional battles between the Stuart monarchs and the English Parliament in the seventeenth century has the executive asserted a subjective right to keep Parliament in abeyance. Today it would be unthinkable that a lack of democratic oversight through a sitting House of Commons would be tolerated by public opinion for any longer than is strictly necessary in the UK’s strong culture of liberal democracy.

There is no merit in the argument that a dissolved Parliament cannot be recalled in the type of emergency we are faced with – including one in which the government has now run out of appropriations approved by Parliament – because the Constitution makes clear and express provision for this situation. If we are to act consistently with the values of constitutional democracy, then it would also demand the rejection of absolute presidential discretions having the effect of negating the tripartite system of republican democracy on which the Constitution is founded. The President and the ruling party have not disguised their intentions; it remains to be seen if the other branches of the state, and above all, the Sri Lankan public, would resist or acquiesce in this attempt at an executive takeover of the state.