CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

ARTICLE


Statesmanship Required to Avert Constitutinal Crisis in Sri Lanka


The government's plans to have early general elections have suffered a setback with the decision of the Election Commission to have them on June 20 and not on May 28 as the government had hoped for. The pressure on the Election Commission to give an early date even led to fissures within it that have become a matter of public knowledge. The keenness of the government was such that the Health Minister even predicted that by April 19, the crisis would be under control with the inference that an election campaigning would not be a problem. The example was given of South Korea which held its general election in the midst of the coronavirus pandemic. This may not have been a fair comparison as the combination of early voting and electronic voting in South Korea will not be possible in Sri Lanka at its present stage of economic development.

On the public stage, government leaders continue to demonstrate confidence that the elections can be held on schedule. The situation in Sri Lanka continues to remain better than in most other countries due to the strict actions taken by the government to lockdown the country. However, the continuing coronavirus spread makes it more likely than not that even the later date of June 20 will also not be practicable. At the present time the coronavirus acceleration has got even higher than it was in March 19 when the Election Commission decided that the original date of the general elections, set for April 25 by President Gotabaya Rajapaksa, was too soon to safely conduct free and fair elections. This can be seen by the fact that the first 100 reported cases took 57 days, the second 100 took 18 days, the third 100 took 8 days, the fourth 100 took 4 days and the fifth 100 has taken just 2 days.

The unexpected rise in the number of coronavirus detections has led the government to reconsider its plans to end the long running curfew in all parts of the country and instead to clamp it down once again. The sudden discovery of large numbers of coronavirus cases within the military who have been at the forefront of the anti-coronavirus campaign has been a shocking blow to public confidence. Consequently, there is very little enthusiasm or support for early elections from the general public. Most of them would prefer if the government set aside the money for the election to give subsidies and direct assistance to the vast masses of people who are experiencing great hardship without having been able to work for their living for over a month. Even government secretariats are not functioning as staff is not turning up for work.

Constitutional Requirements

Until late last week government leaders were continuing to insist that the elections will be held on June 20 with the possibility of the election being held in stages, beginning with the least affected districts. However, President Rajapaksa appears to be more circumspect and aware of the issues of governance according to the constitution that he faces with regard to the elections. The president has stated that it is the independent Election Commission that has to decide the date on which the elections will be held. He said that the Election Commission has the right to hold the election appropriately under the present circumstances and if they want, they can take several days for the election. He also said that he was not going to pressurise the Election Commission to hold or postpone elections.

In the interview the president has also stated that according to the Constitution, the new parliament should meet within three months after the dissolution of the Parliament. This is a constitutional requirement which, if not adhered to, would give rise to a constitutional crisis. If this crisis is to be averted the last date for the new Parliament to be convened is 2 June. The question is what is to happen now that the election is only scheduled to be held on June 20 so that a new parliament cannot be convened on June 2. The constitutional option available to the president, which the opposition is urging him to take, is to re-summon the parliament he dissolved on March 2 by rescinding his proclamation that dissolved it. However, the president does not seem to be prepared to take this step at the present time.

In the context of the worsening economic and health crisis, the pressure is likely to grow on the government to agree to the further postponement of the elections. This will bring to the fore the constitutional requirement that the country must have a parliament in place within three months of the dissolution of the earlier one. This is based on the fundamental principle of division of powers. In the monarchical systems of old, the executive, legislative and judicial powers were all vested in the king. The evolution towards a democratic system meant that these three powers were separated and given to different institutions to wield. Therefore, the argument that the president can run the country without a functioning parliament and with only an unelected caretaker cabinet is not acceptable in modern democratic terms.

Opposition Commitment

Now that the Election Commission has declared the election to be on June 20, this decision will be open to legal challenge, as it has set a date beyond the three month period within which the constitution states that parliament must meet. There are two alternatives that the President can employ in such a situation. The first option will be for the president to rescind the proclamation issued on the 2nd of March 2020 that dissolved parliament. He can issue another proclamation to revoke the proclamation issued under Article 70 (5). Such a proclamation could then restore the dissolved parliament, which was initially elected by the people till the 1st of September 2020.

The president also has the option given in the constitution of temporarily summoning back parliament under Article 70 (7) of the constitution even after parliament has been dissolved if he is satisfied that an emergency has arisen and the meeting of Parliament is necessary due to that emergency. This calling back of parliament is only for a temporary period till the emergency situation is over. He can even propose to parliament to pass a law permitting the general elections to be postponed until such time the coronavirus spread is under control.

The major political parties in the opposition have made a formal offer to the government that if parliament is reconvened they will assist to pass funds and laws to deal with the present crisis. They have said, "we are duty bound to fulfill our obligations to resolve this crisis in a spirit of responsible cooperation extended to the President." It must be borne in mind that this is a parliament in which the parliamentary majority stepped down from power voluntarily after the presidential election. If they had stayed on, they would have formed the caretaker government after the president prematurely dissolved parliament. So the pledge they have given to cooperate with the government and not to seek its defeat in parliament can be taken seriously. The president needs to respond with magnanimity as befits the times. Statesmanship on one side can give rise to statesmanship on the other side of the divide.

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