Constitutional crisis: Back to square one

6 June 2020

After the Supreme Court five-judge-bench headed by Chief Justice Jayantha Jayasuriya unanimously refused to grant leave to proceed on Tuesday with eight fundamental rights petitions filed challenging the dissolution of Parliament and holding the general election on June 20, all issues are back to square one. 

President Gotabaya Rajapaksa dissolved Parliament on March 2. The Constitution says: “A proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall summon the new Parliament to meet on a date not later than three months after the date of such proclamation.” Then, is summoning the new Parliament after June 2 legal, whereas it has to meet before that date, according to the Constitution? 
Parliament did not meet on May 14, the date President Rajapaksa fixed for the matter. Has the Constitution been violated due to the fact that Parliament did not meet on that date or on a date “not later than three months” after the dissolution of Parliament? If so, by whom? Can the President assign another date to convene Parliament? What are the constitutional provisions for it? Isn’t this a constitutional crisis? 

Nobody is to blame despite constitutional provisions having been violated or made ineffective

The President held a meeting on April 24 at the Presidential Secretariat with prominent monks who are supportive of the government. During the meeting, the opposition’s demand to reconvene the dissolved Parliament was discussed. The President told the gathering that he would convene Parliament whenever it is possible. Practically, it is the only option left with him now, since he further told he would not reconvene Parliament. But under what constitutional provision is he going to do so? Would it be legal? 

Thus far, the President had done what he was constitutionally required to. With the dissolution of Parliament on March 2, he fixed dates for the general election and for Parliament to meet, but it was the National Elections Commission (NEC) that postponed the election to June 20, one may argue. Meanwhile, the threat posed by COVID-19 did not allow the NEC to hold the election as scheduled by the President, so that the new Parliament could meet before June 2, another may argue. 

Then, nobody is to blame despite constitutional provisions having been violated or made ineffective. The Supreme Court could have resolved these issues had it granted leave to proceed with the eight fundamental rights petitions that had been rejected. The court too might have legal ground to reject them. 

The arguments filed by petitioners aligned to opposition political parties did not seem strong during the submissions before court. Tamil National Alliance Spokesman and former MP M.A. Sumanthiran argued that the President’s gazette notification to dissolve Parliament on March 2 had been null and void with the NEC announcing June 20 as the date for the general election, making the summoning of new Parliament before June 2 impossible. 

However, in spite of it being seen initially as a strong contention, it remained an argument that could not be corroborated with any provision in the Constitution or any other law. He seems to have based his argument on the article in the Constitution which says: “A proclamation dissolving Parliament shall … summon the new Parliament to meet on a date not later than three months after the date of such proclamation.” The petitioners citing this article also argued that the country cannot proceed without a Parliament for more than three months. Had this point been corroborated with any other article or section of another law, it would have given more strength to Sumanthiran’s argument that the President’s proclamation on dissolving Parliament was null and void. 

Needless to say, one can cite the aforementioned article to argue that the country cannot function without a Parliament for more than three months. However, how can one be certain that the drafters of this article really meant it? Yet, a President could run the country without a Parliament even for years, leading to a dictatorial situation, if there were no limit for him to do so. 

The President could have averted the current crisis either by reconvening Parliament or by seeking the opinion of the Supreme Court as requested by NEC Chairman Mahinda Deshapriya on March 31. However, he did not do so as he is not required by the Constitution to resort to any such option. 

The opposition wanted the President to reconvene Parliament in order to avoid a constitutional crisis that was imminent due to the fact that the new Parliament could not be summoned before June 2. That was logical. Had the President done so, the country could have averted the present uncertainty. There is also provision in the Constitution to re-summon Parliament, which is not totally dead, as the ruling party argued. 

The Constitution says: “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, he may by proclamation summon Parliament which has been dissolved to meet…” And the opposition argued that the coronavirus threat was an “emergency” that warranted such a reconvening of the House. 

However, the ruling party contends that the government had successfully contained the COVID-19 threat without a Parliament and therefore the need to reconvene Parliament did not arise which is true. Despite lapses on part of the government at the initial days of the coronavirus threat, COVID-19 cases were not reported from unexpected quarters for the past month. 

The Government Medical Officers’ Association (GMOA) claimed it informed the government to screen air passengers in February whereas action was taken only in mid-March. The government, during the first week after the first COVID-19 case was reported on March 11, seemed to be more interested in holding the general election. People questioned as to why Chinese visitors to the country were not sent to quarantine centres like visitors from other countries were sent. The government seems to have created unnecessary issues like recommending the mandatory cremation of those who succumb to COVID-19. And a large cluster of patients grew within the navy. Yet, only a political hypocrite could deny that the Sri Lankan campaign against coronavirus is successful. 

Another contention of the opposition to vindicate its demand to reconvene Parliament was that the President could not authorise the issuance of cash from the Consolidated Fund for the public service without parliamentary approval. The relevant article in the Constitution 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 a period of three months from the date on which the new Parliament is summoned to meet.” 

The opposition argues that the President could obtain cash from the Consolidated Fund under this article only for a “period of three months from the date on which the new Parliament is summoned to meet.” No need to say that the need for money would arise before “the date on which the new Parliament is summoned to meet.” Then, what is the opposition’s solution for the period between the day on which the necessity arises and the first meeting of the new Parliament? All these points explain the strength of the opposition’s case. 

Nonetheless, one would not expect a President to use this article to obtain cash from the Consolidated Fund without the approval of Parliament for years.