Principles Of Good Governance, Elections & Combatting A Pandemic 

By Tatiyajith Karunaratne –MAY 18, 2020

Tatiyajith Karunaratne

The apparent inability of the new Parliament to meet on the date proclaimed by the President within a period of three months from the date of dissolution has given rise to a lot of debate. 

Some argue that the President should summon the dissolved Parliament and that the Elections Commission (“EC”) has stepped out of its boundaries by changing the election date originally fixed by the President. Others argue that the summoning of the dissolved parliament is not necessary, and the actions taken by the President and the EC are legitimate. 

At the outset may I indicate that I take the latter view. Therefore, my arguments support the view that the President is not in breach of the principles of good governance. However, in doing so I do not wish to be critical of anyone who hold the other view. Whilst respectfully disagreeing with their view I fully concede that they are well entitled to hold and express a contrary view. 

Arguments in favour of re summoning the Parliament

1. That the President’s failure to summon the old Parliament and instead carrying on with a caretaker government for a period exceeding three months is a clear breach of the principles of good governance. Accordingly, the President should re-summon the dissolved Parliament forthwith as it is apparent now that the new Parliament cannot meet before the lapse of  period of three months from the date of dissolution.

2. That EC has no legitimate authority to postpone the date of election which was originally proclaimed by the President. It is also argued that it is the President who can nominate a date for the General Election and if the said date has to be changed it can only be done by the President by way of a subsequent Proclamation.

3. That Section 24(3) of the Parliamentary Elections Act (“The Act”) does not apply to a “General Election”, and instead applies to a situation where an election has not been conducted in “one” electoral district (i.e a single electoral district). As such, the EC cannot postpone a General election acting under sec. 24(3) of the Act.

Arguments against the re summoning the Parliament

1. That Section 24(3) the Act empowers the EC to change the date of the General Elections.

2. That the procedure for the elections are laid down in the Act. In a situation of an emergency or unforeseen circumstance changing the date of the General Election (or a By-election) is well within the powers of the EC which is an independent authority established by the Constitution of Sri Lanka (“Constitution”) which is entrusted with the task to hold elections.

3. That the dissolved Parliament has no legal right (as well as a moral right) to demand that the President re-summons the dissolved Parliament. 

4. That although it is clear from the spirit of the Constitution that all three arms of the Government should be engaged in the proper governance of the country, during the lead up to a General Election it is inevitable that there is no effective participation by the Legislature as the country is governed by a caretaker government. 

5. It is further opined that the Parliament has to be re-summoned only if participation of the legislative arm of the government becomes a necessity in the opinion of the President. This becomes a real necessity if new laws are needed to be enacted to address the emergency the country is facing as passing laws is the exclusive function of the Parliament.

Dissolution of Parliament

In terms of the Constitution, the life of the Parliament can come to an end in three different ways. In this instance it has been dissolved after its completion of four and a half years. 

The Constitution confers an unfettered discretion on the President to dissolve the Parliament on its completion of four and a half years. As such it is difficult to see how the act of dissolution by the President in this instance can be seen as ultra vires and giving rise to a violation of any right guaranteed by the Constitution.

The current situation i.e. the inability on the part of the EC to hold a General Election could very well have taken place even after the Parliament being dissolved having after completed its full term. In such a case there is no room for an argument that the life of the Parliament was cut short by the action of the President. Therefore, it is worthwhile to consider whether the situation would have been different if the current situation arose in a scenario where the Parliament had been dissolved after completing its full term.

Article 62(2) of the Constitution stipulates that every Parliament will continue for a period of five years (unless dissolved sooner) and expiry of the said period shall operate as a dissolution of Parliament.  As such it is evident that the maximum life of an elected Parliament is five years and at the end of the said five year period  the mandate given by the people comes to an end and it operates as a  dissolution of the Parliament.

Article 70(5)(b) dictates that when the Parliament is dissolved after completing its full term, the President should forthwith fix a date or dates for the election of the Members of Parliament and also fix a date for the new Parliament to meet on a date “not later than three months” after the date of such Proclamation.

It is important to note that Article 70(5)(a) which deals with dissolution of Parliament by the President, and Article 70(5)(b) which deals with the dissolution of Parliament by the completion of its full term are identical.

Parliamentary Elections Act

Procedural aspect of an election is governed by the Act.  It is noteworthy to point out that in dealing with the procedural steps regarding elections, the Act refers to a “single electoral district” which makes those procedural steps to be equally applicable to  an election held in a single electoral district, multiple electoral districts or an elections held in all twenty two electrical districts. Thus, the Act covers General and By-elections.

Section 10 of the Act stipulates that the Proclamation issued by the President under Article 70(5)(a) or (b) should specify a nomination period and the date on which the poll is taken.

Sec. 22 of the Act deals with contested elections. According to the said section after the nomination period and allocation of symbols to independent groups the Returning Officer for each district should report to the EC that it is a contested election.

Sec. 24 of the Act stipulates that after receiving a notice issued under Sec. 22, the EC should publish a notice in the Gazette specifying (i) Electoral District in which the election is contested (ii) names of the candidates and the independent groups and approved symbols (iii) date of poll being the date specified under Sec. 10 and (iv) situation of the polling station or stations. It is important to remember that the date specified under Sec. 10 is the same date nominated by the President in his Proclamation.

Section 24(2) of the Act empowers EC to change the location of a polling station (or stations) in case of an emergency.

Section 24(3) empowers the EC to change the date published under sec. 24(1) in the case of an emergency or unforeseen circumstance. It is noteworthy that the date referred to in this section is as same as the date nominated by the President in his Proclamation. Therefore, a plain reading of Sec. 24 in its entirety makes it abundantly clear that the Act empowers the EC to change the date nominated by the President in his original Proclamation. If the law specifically empowers the EC to change the date of election proclaimed by the President, how can there be any merit in the argument that the EC does not have power to change the date proclaimed by the President and that in doing so it usurps the power of the President? 

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