The way forward – Part I

COVID-19 has spread worldwide without acknowledging borders. It has impacted all industries, all segments and all aspects of human life with devastating economic and financial losses and significant uncertainties. Thus, in dealing with the issue of holding the elections, it made somewhat mandatory to have the duration and magnitude of the outbreak and containment measures be considered – Pic by Shehan Gunasekara 

Friday, 22 May 2020 

Franchise and

Legislature of Sri Lanka

Prior to 1948 and until such time Sri Lanka was given independence, there were somewhat restrictive franchises enjoyed by Sri Lanka. They were granted by way of introducing various reforms such as replacing the communal representation in legislation to territorial representation, etc.

Further, limited franchise was also given to the people to elect members to the Legislature. However citizens of Sri Lanka were not the citizens of a truly independent country but the subject of the British Monarchy.

Soulbury Constitution (1948-1972)

Due to the pressure mounted on the British Empire towards the end of World War II, and also due to the independence movements of such countries, the British Monarchy, whilst introducing the Soulbury Constitution, granted independence to Sri Lanka. (However the writer does not accept that Sri Lanka gained independence in 1948 and verily believes that Sri Lanka truly obtained independence from the British Monarchy only with the adoption of the First Republican Constitution in 1972.)

However, among other things, due to the limitations imposed on the then Parliament by Article 29(2) of the said Constitution and as well as the British Monarchy exercising supreme Executive power within the territory of Sri Lanka, and the British Privy Council being the supreme appeal board in respect of appeals from Ceylon, as it was then named, Sri Lanka was not truly independent and merely enjoyed dominion status.

First Republican

Constitution (1972 to 1978) 

The Sixth Parliament after independence was dissolved in April 1970 and the General Elections were called to be held on 27 May. Due to the inherent incapability enshrined in the Soulbury Constitution, enacting a new constitution through such Parliament was an impossibility. As such, the coalition led by somewhat left-wing political parties under the banner of United Left Front led by Sirimavo Bandaranaike (who was the then Leader of the Opposition and the Leader of the Sri Lanka Freedom Party), sought the mandate of the people to constitute a Constituent Assembly charged with the power to draft and adopt a new constitution.

The said Alliance swept into power, and the then Governor-General, whilst declaring open the Seventh Parliament, declared that, “…by their vote democratically cast, the people have given you a clear mandate to function as a Constituent Assembly draft, adopt and operate a new Constitution, which will declare Ceylon to be a free, sovereign and Independent Republic…”

The said Constituent Assembly assembled for the first time on 19 July 1970, not in the Parliamentary Chambers but at Nawarangahala. Such Constituent Assembly, whilst assembling at Nawarangahala again on 22 May 1972, adopted the First Republican Constitution, making Sri Lanka a truly independent republic. (The writer verily believes that as such 22 May declared by the 1972 Constitution, and on which day Sri Lanka became a Republic, is the proper day to be celebrated as the National Day or the Independence Day and not 4 February, which was reintroduced under the Second Republican Constitution of 1978).

Separation of Powers 

America was under the British Rule until it gained independence after an arms struggle. Those who pioneered the American Revolution hated authoritarian powers of the monarchial authority exercised over them by the British Monarchy. Thus America’s founders, who were skilled engineers of political power, were particularly attuned to the perils posed by legal subterfuge and the temptations of the presidency towards exercising monarchial authority, and so designed a system which laid out in the Constitution the establishment of the newly formed US Government in three coequal branches, each of which was supposed to provide checks and balances to the others, namely, the two Houses of Congress being the Legislative Branch, the Judiciary and the President, as its Executive Branch.

J. R. Jayewardene’s government which came into power in 1977, whilst bringing an amendment to the First Republican Constitution, introduced the Executive Presidency System for the first time in Sri Lanka, which was later re-introduced by bringing the Second Republican Constitution in 1978.
Exercise of Sovereignty 

Likewise as per Article 4 of the Constitution, which describes the power of the people to govern, enacts that; “...the Legislative Power of the people would be exercised by Parliament consisting of elected representatives of the people and by the people themselves at a referendum, the Executive Power of the people, including the defence of Sri Lanka, shall be exercised by the President of the said Republic elected by the people and likewise the Judicial Power of the people would be exercised by Parliament (however), through courts, tribunals and institutions created and established or recognised by the Constitution, or create and establish by law..”.

The Parliament, which shall have power to make laws, shall not abdicate or in any manner alienate its legislative power. (Articles 75 and 76)


Such is the power and the authority of the people expressed by way of casting vote. Thus it is crystal clear that exercise of franchise and holding of timely elections are of paramount importance for a healthy democracy.

Term of Parliament and General Elections/Parliamentary Elections 

Such Parliament, which is the supreme legislative body of the Republic, shall consist of 225 members. In order to regulate the holding of election of members of Parliament, the Parliamentary Election Act (PEA) No. 01 of 1981 had been enacted. The term of the said Parliament was six years. However, by introducing the 19th Amendment, which was introduced after the Presidential Election held on 8 January 2015 and prior to the 18 August General Election, the said term had been reduced by one year. Thus, the term of Parliament now stands at five years. (Article 62(2) as amended by the 19th Amendment)

Article 62(2) specifically provides that Parliament would be considered as dissolved after the expiration of such a period of five years.

Sooner dissolution of the Parliament 

However Sub Article 2 of Article 62 also paved way for the prior dissolution of the Parliament, prior to the conclusion of the said period of five years. The words used are, “…Unless the Parliament is sooner dissolved…”

Thus it become necessary to look into such and further constitutional provisions warranting sooner dissolution of Parliament. The proviso to Article 70, as amended by the 19th Amendment, curtails the power of the President to dissolve Parliament until the expiration of a period of not less than four years and six months from the date of the first meeting of the said Parliament.

Further, the said proviso to Article 70 also makes further provision for another method of dissolving of Parliament. In such an instance the members of the Parliament themselves must request the President to do so, by passing a resolution not less than with a two-thirds majority.

Thus it is clear that though the term of the Parliament is five years, the President of the Republic is constitutionally powered to dissolve Parliament after the expiration of four years and six months, after the date appointed for its first meeting. And then again, the members of Parliament also have the power to request the President to do so.

President’s power to dissolve the Parliament

Article 33 of the Constitution, as amended by the 19th Amendment, whilst describing the duties, powers and the functions of the President, specifically gives an additional power to the President, by its Article 33(2)(c), to summon, prorogue and dissolve Parliament.

The other Article pertaining to the same is Article 70 of the Constitution.

Dissolution of Parliament on 2 March 2020

The election to elect the Executive President is governed by the provisions of the Presidential Election Act No. 15 of 1981. At the Presidential Election that was held on 16 November 2019, His Excellency Gotabaya Rajapaksa was declared elected as the Seventh Executive President of Sri Lanka. The then Prime Minister and the other Cabinet Ministers of the Yahapalanaya Government tendered their resignations from their respective ministerial posts, paving way for the President Elect to appoint the new Cabinet and thus to form the new Government, as provided for in Chapter VIII of the Constitution, as amended by the 19th Amendment.

The President, who is elected by the people, is the Head of the State, the Head of the Executive and of the Government, and Commander-in-Chief of the Armed Forces, Article 30 enacts. As per Article 42 of the Constitution, the Cabinet of Ministers of which the President is not only a member, but the head of it, is charged with the direction and control of the Government of the Republic.

President, by exercising power given to him under proviso to Article 70(1), dissolved Parliament on 2 March 2020, by issuing a Proclamation that was published in the Government Gazette bearing No. 2165/8 dated 2 March 2020.

In such an instance, by operation of law and specifically the constitutional provisions enshrined in Article 47(1) of the Constitution, the Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall, notwithstanding such dissolution, continue to function. Same shall cease to function upon the conclusion of the General Election.

Therefore it is clear that, upon the dissolution and until such time of the conclusion of the General Election there is an executive body consisting of the Executive President and the Cabinet of Ministers charged with the direction and control of the Government of the Republic, and thus the governance of the Republic is not made redundant.

The Constitutional provisions pertaining to the dissolution of Parliament 

The constitutional provisions pertaining to the dissolution of Parliament, and specially the provisions enshrined in Article 70(5), makes provisions for the mandatory elements that should be contained in such a proclamation. This provision should be read in conjunction with the provisions of Section 10 of PEA of 1 of 1981. It shall fix a date or dates for the election of the members of Parliament. Thus it is clear that the holding of the General Election/Parliamentary Election to elect Members of Parliament is mandatory. It shall also specify the date to summon the New Parliament to meet. Thus it is clear that summoning of the New Parliament to meet to transact its businesses is also mandatory.

However, the date of which the New Parliament must meet should be a date not later than three months after the date of such Proclamation dissolving Parliament. Thus it is clear that within three months of such dissolution, the New Parliament must be summoned.

The words “New Parliament” is of utmost importance. It is understood that to form the New Parliament, the election to elect the members of Parliament must be held, which is mandated to or entrusted with an independent commission called the Election Commission.

The date of the election

By the said Proclamation dated 2 March 2020, as directed by Article 70(5)(a), the President fixed 25 April 2020 as the date for the Election to be held and fixed 14 May 2020 as the date to summon the New Parliament to meet.

Constitutional Council and the Independent Election Commission 

Giving more effect to the sovereignty of the people as enshrined in Article 4 of the Constitution, Chapter XIV thereof makes specific provisions with regard to franchise and elections.

Chapter XIV(A), as amended by the 19th Amendment to the Constitution, establishes the Election Commission, which is to be an independent commission, and as provided for in Article 103(2), the object of which is to conduct free and fair elections and referenda.

Further, as per Article 33(1)(a) and (d), it is the duty of the President to ensure that the Constitution is respected and upheld, and further, on the advice of the Election Commission, to ensure the creation of proper conditions for the conduct of free and fair elections and referenda.

To ensure its independence for the betterment of the democratic society of the Republic, the Constitution specifically provides that such an election commission is not even answerable to Parliament (Article 41B(6)).

As per Article 41A there shall be a Constitutional Council, of which the Speaker is the Chairman.

To ensure its independence, Article 41 B (1) provides that the President has no authority to appoint as chairman or members of the Election Commission any person except those names that are recommended by the Constitutional Council. The present Election Commission consists of three members so appointed.

Election to be conducted by Election Commission

Once the Proclamation is issued by the President, duty to hold elections as per the provisions of the PEA passes on to the Election Commission.

As per Section 10 of the PEA, in every such Proclamation dissolving Parliament, the President shall nominate the period during which nomination papers shall be received by the returning officer (nomination period) during normal office hours at his office; and the date on which the poll shall be taken. Acting under Section 10(1)(a) of the PEA, the President specified the nomination period to read as 12 March 2020 to Noon of 19 March 2020.

By the said Proclamation dated 2 March 2020 the President duly nominated 25 April 2020 as the date for the election.

Handing over the nomination

The contestants who wished to be elected at the next general elections handed over their nominations during the period specified above. By issuing press release No. 16 dated 15 March 2020 the Election Commission had announced that the Minister of Public Administration and Home Affairs had declared Monday 16 March 2020, a public holiday, and as such the Election Commission cannot accept nominations or deposits on the said date of 16 March 2020. It further announced that deposits and nominations will be received during officer hours of both 17 and 18 March 2020 from 8 a.m. to 12 Noon on 19 March as notified earlier. It also further announced that due to 16 March now being declared a public holiday, the Election Commission had instructed that applications be expected for postal voting until midnight on 17 March. This can be considered as a prudent move on the part of the Election Commission to take away any prejudice that would have been caused due to declaring such a public holiday, which was in turn done as a measure to control the COVID-19 outbreak.

At the conclusion of the nomination period it is also evident that no such contestant, or any recognised political party representing them, had ever objected to the acceptance or non-acceptance of such nominations during the said nomination period or holding of elections.

Notice of the poll

Acting under Section 24(1)(a) and (c) of the PEA, the Election Commission by Gazette Notification bearing No. 2167/12 dated 20 March 2020, notified that the polls (General Elections) will take place between 7 a.m. and 4 p.m. on 25 April 2020.

COVID-19

The World Health Organisation (WHO) declared that on 31 December 2019, an outbreak of pneumonia of unknown etiology was reported in Wuhan City, Hubei Province of the People’s Republic of China. On 9 January 2020, Chinese authorities reported that the cause of this viral pneumonia was initially identified as a new coronavirus, which is different from any other human coronavirus discovered so far. The disease was subsequently referred to as COVID-19.

Following the advice provided by the Emergency Committee convened under the International Health Regulation [IHR (2005), on 30 January 2020, the Director General of WHO declared the outbreak of COVID-19 a Public Health Emergency of International Concern (PHEIC) and issued a set of recommendations.

The said COVID-19 has spread worldwide without acknowledging borders. It has impacted all industries, all segments and all aspects of human life with devastating economic and financial losses and significant uncertainties. (WHO website)

Thus, in dealing with the issue of holding the elections, it made somewhat mandatory to have the duration and magnitude of the outbreak and containment measures be considered.

Decision of the Election Commission to not hold the election 

By issuing the Gazette Notification bearing No. 2167/19 dated 21 March 2020, acting under Section 24(3) of the PEA, the Election Commission announced that the election cannot be held on 25 April 2020 as scheduled, due to the COVID-19 outbreak in Sri Lanka. It further notified that the Election Commission, in due course, will appoint a day, coming after 14 days from 30 of April 2020, as the new day for the polls, by issuing a Gazette notification.
 (The writer is a President’s Counsel.)