2 May 2020 12:23 am Views - 1955
Opposition calls for it only for political ends
Smaller parties depending on UNP are trying to unite two UNP factions
Present laws are sufficient enough to deal with corona crisis
President can draw money from Consolidated Fund during dissolution of Parliament
Article 150(3) provides for such withdrawal
Curfew is legitimate
Excerpts:
Q The opposition argues it is unconstitutional for President Gotabaya Rajapaksa not to re-summon the dissolved Parliament, since the day of polling has been postponed by the Election Commission. How do you see it?
There is absolutely nothing unc
There is no way that the discretion of anyone else can be substituted for that of the President. Litigation will not accomplish that purpose. The Supreme Court cannot substitute its opinion for that of the President. This is discretionary power that belongs only to the President in terms of the very clear provisions contained in Article 70(7). When an emergency arises after Parliament is dissolved, Parliament is summoned to give effect to emergency regulations. That is if the President has declared a state of emergency after dissolution of Parliament. To give effect to emergency, you have to promulgate regulations. Those regulations have to be ratified or adopted by Parliament. In this situation, no emergency has been declared. Therefore, the need to place emergency regulations before Parliament does not arise. What is the purpose to be achieved by re-summoning Parliament? As far as dealing with the coronavirus is concerned, all the powers that the government needs are already available under statutory provisions like the Quarantine and Infectious Diseases Ordinance of 1891. That is an old British statute. Then, you have the Disaster Management Act which is much more recent. That is an Act of 2005. Then, you have the Public Security Ordinance. The declaration of curfew is provided for in section 16 which is in part III. Provisions in part II of the Public Security Ordinance require approval by Parliament. Section 16 which deals with the curfew is in part III. It does not require approval by Parliament. It is difficult to understand what purpose is going to be achieved by Parliament in relation to the coronavirus outbreak. One is there is no need to do so. Secondly, it is entirely a matter for the President. If the President feels that there is no need to re-summon Parliament, there is no reason to re-summons Parliament which has been validly re-summoned.
The opposition has a major problem. That is the bickering among themselves. The UNP is split into two. They have submitted two nomination lists. That has become a major problem for them and other parties that are dependent on the UNP
Q The argument is that the new Parliament has to meet on a day within three months upon dissolution. It means Parliament has to meet before June 2. But, polling is rescheduled for June 20. Therefore, the dissolution of the old Parliament is rendered invalid. How do you counter it?
The three month limit is there in Article 70(5) (a). That is about the President dissolving Parliament. Then, he has to fix a date for the elections. He has to indicate a date for the new Parliament to meet. What is required to do within three months is for the new Parliament to meet. The word ‘new’ is used twice in Article 70. The three months limit is attached to the presidential proclamation issued under Article 70(5) (a). Once the President fixes a date, there is power given to the Election Commission to change that date. That is in terms of section 24 of the Parliamentary Election Act of 1981. The President fixed April 25 as the date but the National Election Commission changed that to June 20. They acted under authority given to them by the Parliamentary Elections Act. That section of the Act does not refer to a three-month time limit. It has stipulated a minimum period not a maximum period. If they are to postpone, it has to be done for 14 days. The commission’s power to fix a new date is not restricted by time limit specified.
Q The argument is that the constitution overrides all other laws. What is your view?
What has to be summoned within three months is not the old Parliament. It is the new Parliament. No constitutional requirement is satisfied by summoning the old Parliament. It is the new Parliament that has to be convened within three months. You need to have an election to summon the new Parliament. There is a well-known legal maxim that the law does not compel the impossible to be done. If the elections are not held, there is no possibility to convene the new Parliament. The Sinhala version uses the term ‘Abhinawa(new) ‘ three times. The English version uses the word ‘new’ twice.
The results of the presidential elections held on November 16, 2019 indicates very clearly that the last parliament does not mirror the current state of public opinion in the country. I don’t think anyone can reasonably challenge that proposition
Q If the law is so clear as you said, what do you think is their purpose in making such calls for reconvening the old parliament?
The law is very clear. The Chairman of the National Election Commission wrote a letter to the Secretary to the President asking that this matter be referred to the Supreme Court under Article 129. The President only can refer it to the Supreme Court. The President exercises that power where there is doubt with regard to important Act or law- reasonable doubt. There must be reasonable doubt. If there is no ambiguity and the law is clear, there is no need to refer the matter to the Supreme Court under Article 129. This clamour for re-summoning old parliament is for narrow political gain.
Q Why do you say so?
The opposition has a major problem. That is the bickering among themselves. The UNP is split into two. They have submitted two nomination lists. That has become a major problem for them and other parties that are dependent on the UNP. Those parties are making desperate efforts behind the scene to bring two factions together to submit a common list. What is standing in their way is the fact that the nomination lists have already been received and accepted. The last day for accepting was March 19. That is complete. The Election Commission has declared that they have no power whatsoever to annul or cancel the nomination lists. There is one way of cancelling the nomination lists. That is only by Parliament. Parliament has the authority to cancel nomination lists. What they want is to re-summon Parliament not to deal with the corona virus but to solve an internal problem. That is to suspend the Standing Orders of Parliament and proceed to annul the nomination lists. They are trying to file fresh nomination lists. That is an internal political problem. That is the true reason to re-summon Parliament.
Q Only the factions of the UNP have submitted separate nomination lists. But, former TNA MP M. A. Sumanthiran is mainly calling for re-summoning Parliament. Do you see any reason behind it?
They are acting together. Smaller parties have openly declared that they will do everything possible to support the formation of a UNP-led government. They have categorically stated it. They will give their fullest strength to the formation of a UNP-led government. These are tactics and strategies to achieve that objective. They will strain every sinew to bring into being a UNP-led government.
Q There is another constitutional issue raised by them. They argue that the President cannot allocate money from the Consolidated Fund without sanction by the House. They say Parliament should meet as a result. How do you counter it?
There is no problem about it. The governing Article is Article 150(3) which gives the power to the President to draw money from the Consolidated Fund during a period of dissolution and for three months the date on which the new Parliament meets. During dissolution, the President can draw on money from the Consolidated Fund to public expenditure. That power does not come to an end on the day the new Parliament sits. That power goes for another three months. That is to give the new Parliament to prepare an appropriation bill and a budget. These are situations that have been anticipated in clear terms. All manner of reasons are given to re-summon the old Parliament. It was said that the new laws were required to deal with the coronavirus. New laws are not required. The existing laws are entirely adequate.
There is ample provision in the existing laws to deal with every aspect of the corona situation. There are also the constitutional provisions which enable the withdrawal of money from the Consolidated Fund.
Q How do you describe the legality of curfew currently enforced since it is challenged by the opposition?
The Public Security Ordinance, in section 16, specifically provides for curfew to be imposed. Section 16 is in part III of the Public Security Ordinance. Section 17 deals with essential services, and section 12 even allows for the use of the armed forces. Section 22 says you issue a proclamation to this effect, and it has to be issued again in 30 days’ time. All these powers which are given under part III do not require parliamentary approval.
Parliamentary approval is needed for actions taken under part II.
Our position is that the curfew is entirely legitimate.
Q Some people argue that the quarantine law is archaic. What is your view?
It is not archaic. It gives power to take measures that are necessary to deal with an epidemic or a pandemic. Then, it is not the only legislation that is available. It has been amply supplemented by provisions in much more recent legislations like the Disaster Management Act of 2005. In the Act, an epidemic is catered for. The colonial legislation is not the only available legislation to deal with this matter. When all these powers are available, why do you need to summon Parliament for this purpose? It is not the true reason. That is only the stated reason. The actual reason is a narrow political purpose.
Once Parliament is dissolved, you cannot re-summon it for a general debate. It has to be for a specific reason – to give effect to regulations for the promulgation of emergency.
Such a move for a general debate will only hinder rather than facilitate the government’s actions in dealing with the crisis.
The results of the presidential elections held on November 16, 2019 indicates very clearly that the last parliament does not mirror the current state of public opinion in the country. I don’t think anyone can reasonably challenge that proposition. This was the parliament that was elected on August 17, 2015. A lot of water has flown under the bridge since then. The entire national situation has changed drastically since then. That parliament was associated with dire calamities which this country experienced since Independence. One was the pillage and plunder of the resources – Central Bank scam. Then, towards the end of that Parliament’s life, came Easter Sunday carnage.
That Parliament is completely discredited in the eyes of the public. The public spoke loud and clear. The Public wanted a fresh pot of departure, not continuity. Now to saddle the President elected with an overwhelming majority, is not a legal requirement but completely undemocratic- far from being democratic norms and values.
Q The Election Commission has declared June 20 as the day of polling. How serious is the government having elections?
It is not a matter for us at all. The fixing of a date is a matter for the National Election Commission. The President’s Secretary, Dr. P.B. Jayasundara in his letter to the Commission, categorically stated that the President does not wish to interfere with the functions of the Commission. We are not into business of fixing a date. That is entirely in the hands of the Commission. They must do their constitutional duty.
For the complete eradication of COVID-19 from the earth, one will have to wait for another two years. That is not realistic. One has to focus on economic, industrial, agricultural activities etc. All of that cannot be shut down until coronavirus is completely eradicated.
In the United States, the presidential elections have to be held in November. Whoever wins has to take oath in January, the next year. There, you have more than three million patients. Whatever the circumstances may be in the United States, the elections cannot be postponed. There are inflexible democratic norms by the Constitution. We are not clamouring for elections.