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Holding elections after June 2 prima facie unconstitutional: expert

President Gotabaya Rajapaksa addressing Parliament/File Photo

ECONOMYNEXT – A number of fundamental rights petitions were filed in Sri Lanka’s supreme court this week challenging President Gotabaya Rajapaksa’s dissolution of the eighth parliament on March 2 this year.

The opposition Samagi Jana Balavegaya (SJB), journalist Victor Ivan, Centre for Policy Alternatives (CPA) Executive Director Dr Paikiasothy Saravanamuttu and other individuals filed separate applications seeking a declaration from the country’s apex court that their fundamental rights have been violated as a result of the next parliamentary election being held three months after the March 2 dissolution of Sri Lanka’s eighth parliament.

As explained in the CPA’s petition, regardless of how it is dissolved, article 70(5) of the constitution provides a mandatory time limit within which a new parliament should meet, i.e. three months from the date of dissolution.

The petitioners contend that if the March 2 dissolution is permitted to stand, this would have required the new, i.e. ninth, parliament to meet for the first time by June 2. Thus, the petitioners state, a decision to hold the election on June 20 is unconstitutional and is a violation of their fundamental rights.

Given that the COVID-19 pandemic is showing no signs of abating at present, it is increasingly likely that the election will be postponed yet again, beyond June 20.

“The lack of a functioning parliament for more than three months undermines the sovereignty of the people and undermines the rule of law. In light of all these circumstances, the petitioners have requested the supreme court to declare that their fundamental rights under articles 12(1) and 14(1)(a) of the constitution have been violated,” the CPA said in a statement.

Ivan’s petition, meanwhile, requests the supreme court to quash the gazette notifications pertaining to the postponement of the election.

Speaking to EconomyNext, Edinburgh Centre for Constitutional Law Director Dr Asanga Welikala said the decision to hold elections on a date beyond the time permitted by the constitution is prima facie unconstitutional.

According to Welikala, the rule in Sri Lanka’s constitution that there can be no more than a three-month hiatus between the dissolution of one parliament and the meeting of the next is reflected in most if not all commonwealth constitutions.

“The principle is cast in absolute terms in our constitution, and its underlying purpose is to ensure that the absence of a functioning parliament is only of a temporary and short time period. A functioning parliament is fundamental to the entire system of government established by our constitution. The sovereignty of the people is shared and exercised by all three branches of government, and the three branches check and balance each other,” he explained.

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The constitution does not permit any variation to this rule, said Welikala, which requires that the next parliament meets on or before June 2.

Owing to the escalation of the COVID-19 pandemic, Sri Lanka’s election commission decided to hold the next parliamentary elections on June 20, which, as the petitioners argued and as Welikala concurred, is beyond the time permitted and is therefore in violation of the constitution.

If the commission is unable to hold the election on or before June 2, said Welikala, the president must rescind the March 2 proclamation of dissolution in order to set a new (and later) date for the election.  But since his doing so would effectively bring the dissolved parliament back to life, President Rajapaksa has flatly refused to do so.

“Thus we are faced with a situation in which for practical difficulties brought on by the pandemic the election cannot be organised by the election commission, but the constitutionally authorised actor (the president) who can remedy the problem is refusing to exercise his constitutional power,” explained Welikala.

“That is why these petitions have been made to the supreme court. The country needs a clear and authoritative decision about how the situation can be handled – and any crisis of both public health and constitutional government averted – consistently with the fundamental rules laid down in the supreme law. It is only the supreme court that can provide this authoritative decision under the constitution,” he added.

When the petitions are taken up, Welikala believes the government will likely argue that the supreme court cannot force the president to rescind the dissolution, as that is a subjective decision of the president under the constitution.

“It is unclear how the government will meet the argument that the refusal to rescind the dissolution in the context of the inability of the election commission to hold the election before June 2 has created a situation whereby the commission has had to breach the constitution in order to set the date of June 20.

“If the court agrees with the petitioners that the government’s position is constitutionally untenable, then it will have to quash (i.e., declare invalid) the president’s March 2 proclamation. If the court quashes the dissolution, then the old parliament comes back to life by operation of law. It is then also open to the president to dissolve Parliament again and set a new date for the election,” he said.

In the event that the supreme court rules that it cannot quash the dissolution proclamation, said Welikala it will have to find some way to justify departing from the 3 month rule, but it is not clear how it might do so. (Colombo/May6/2020)

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