Parliament and the President in Democratic Governance

By Professor Savitri Goonesekere

I write this in response to Mr. Tatyajith Karunaratne's recent article on the subject of the General Elections 2020 and the summoning of the new Parliament. Mr. Karunaratne is a former Deputy Solicitor General, Attorney General's Department, Sri Lanka, and currently a senior prosecutor in Australia. 

May I say at the outset that I am surprised at the allegation of political bias against "professors" and others who have expressed viewpoints on this matter. It is sad that the diverse opinions expressed on legal issues of public concern are dismissed as the outcome of “political bias.” I wonder whether legal professionals and academics in Australia where Mr. Karunaratne practices will adopt a similar approach to view point difference among lawyers and legal academics.

Mr. Karunaratne addresses two issues of concern to me. I will not deal with the issue of whether the word "emergency" used in Article 70 (7) of the Constitution and Section 24 (3) of the Election Act conflict with each other. I personally have not made that argument, nor have I read anything that supports that point of view.

In regard to his other arguments:                                              

a)        The Constitution and Presidential duties.

Mr. Karunaratne takes the view that the Constitution Article 70 (5) does not indicate that the General Elections and the date of the summoning of the new Parliament must take place on specified dates. Therefore these dates are flexible, and the President   fulfilled his duty when he made the Proclamation of March 2020 and set dates for these events, even though the Covid 19 pandemic has made it impossible to keep to these dates.

While it is correct that the Constitution does not indicate specific dates, it DOES SET AN IMPORTANT TIME LIMIT that Mr. Karunaratne has ignored.  Article 70 (7) (quoted verbatim in his article) says that in issuing the Proclamation dissolving Parliament, the President    “shall summon the new Parliament to meet on a date not later than three months AFTER THE DATE Of SUCH PROCLAMATION.”

How can Mr. Karunaratne conclude that “there is no provision in the Constitution which stipulates that the reconvening of Parliament before the expiry of three months is not mandatory," when he completely ignores the language cited above, which clearly sets a TIME FRAME of three months from THE DATE OF THE PROCLAMATION, FOR CONDUCTING GENERAL ELECTIONS AND SUMMONING A NEW PARLIAMENT? 

I would also like to remind that this time limit is reiterated in Article 70 (c), which says that "the date for the first meeting of Parliament by a Proclamation (dissolving Parliament) may be varied by a subsequent Proclamation PROVIDED THAT THE DATE SO FIXED BY THE SUBSEQUENT PROCLAMATION SHALL BE A DATE NOT LATER THAN 3 MONTHS AFTER THE DATE OF THE ORIGINAL PROCLAMATION. 

Should lawyers wrap such clear language in legal knots of interpretation?  Mr. Karunaratne says that the Constitution is the supreme law of the land. He also concedes that the purpose of the Presidential Proclamation on dissolution and summoning a new Parliament is to prevent “dictatorial governance” and the undermining of the importance of the Legislature in governance.  It is good to know that at least we all agree on that perspective. 

Our difference of opinion is that Mr. Karunaratne ignores the 3-month time frame referred to twice in Article 70, and therefore justifies open-ended scheduling of the elections, and the summoning of a new Parliament. The time frame is critical, to ensure conformity with the fundamental principle that the President cannot govern without Parliament for an unlimited time.

Though a strict time limit is set in Article 70 (5), Article 70 (7) gives the President the power to respond to an emergency when the three-month mandatory limit cannot be implemented.  He is empowered to resummon the old Parliament and repeat the process given in Article 70 (5) when he dissolves Parliament at the end of the emergency.   Seems easy enough to do.

b)        The Elections Commission’s powers on postponement

Mr. Karunaratne argues that Section 24 (3) gives the Elections Commission a open ended power to set the dates of a General Election (for all electoral districts) on any day that they consider feasible, when there is an emergency. He argues that the reference to "an electoral district" in Section 24 (1) and the postponement of an election in any electoral district in an emergency in Section 24 (3), if interpreted identically, will mean that the Elections Commission can hold a general election in only one district.  This is an extraordinary analysis of these sections.  

The point is that they cannot be interpreted identically.  Section 24 (1) regulates the manner in which the polls must be conducted for a general election, by reference to the phrase “an electoral district.”  Article 24 (3) on the other hand refers to the postponement of the date of polling “in any electoral district” in an emergency. Mr. Karunaratne clearly does not seem to appreciate the distinction made in the Election Act on the administrative arrangements for conducting the polls for a General Election by reference to “an electoral district,” and postponing polls in any or more such districts due to an emergency.

Beside, an interpretation that the Elections Commission can conduct the General Election across the country on varying dates, in an emergency, has serious implications for the financial and human resources required for such a national poll.

In any event, these arguments based on Section 24 (3) on postponing a General Election become irrelevant when the Proclamation itself becomes invalid for violating the three-month time limit. 

According to Section 24 (1) (c) which Mr. Karunatratne has entirely omitted from his analysis, and Section 10 (1) (b) (also not mentioned), the date for the General Election conducted by the Elections Commission is linked to the President’s Proclamation on dissolution, and must conform to it.    Therefore any poll conducted by the Commission when the Proclamation becomes invalid for passing the three-month limit will be illegal.  The President cannot then, as suggested by Mr. Karunaratne, summon a new Parliament after such a General Election by exercising the general powers he has under Article 33 (2) (c) of the Constitution. 

Differences in view points on what is doable and not doable according to the Constitution and the election laws, suggest that a Constitutional crisis on the relationship between Parliament and the President is a real possibility.  Article 70 (7) of the Constitution provides guidance on how such a crisis can be avoided.  If the matter has to be resolved in litigation, we can expect the Supreme Court to maintain its highest traditions in their decision.  We can expect that the Court will interpret the law and the Constitution to ensure the balance between Parliament and the President in governance. Mr. Karunaratne and I both agree that this balance is important to prevent what he describes as “dictatorial governance.”           

(Prof. Goonesekere is Emeritus Professor of Law, University of Colombo).