“The principle of the unitary executive, which I endorse, concerns the identity of the person who controls executive functions, not what those functions or the legal constraints on them are.”
- John C. Harrison,
The date that the President declared that the General Elections were to be held, in pursuance to his proclamation by Extraordinary Gazette on 02 of March, i.e. 25th April came and went. Given the alarming surge the COVID Curve has shown in the last few days, one only wonders in trepidation, as to what would have been the status of the dreaded curve, had the election taken place on that date. In a context where the President stubbornly refusing to reconvene the Parliament, leaders of seven opposition parties handed over a letter to the President saying that Parliament should be reconvened in terms of the very clear and the most constitutional way of dealing with the COVID-19 pandemic that is gripping the entire world at this point of time.
While the wisdom of the decision to prematurely dissolve Parliament in the first place, when the entire world was bracing itself for an unprecedented onslaught of a modern day version of the medieval plague, the President showed that his priorities were clearly divided between doing the best for the country and getting the best political advantage possible by calling a General Election. Most of the Sri Lankans feel that the President, who has not been challenged in terms of his appointment of Mahinda Rajapaksa as the PM, in spite of being in the minority in parliament before it was dissolved, must have been under pressure from the SLPP, his elder sibling and his inner sanctum in particular, who are hell bent on establishing a government of their own.
Constitutional provisions do allow the President to reconvene Parliament without any difficulty. The uncertainty and apprehension that a Constitutional crisis could be on the offing, after or even in the midst of the COVID onslaught, in my opinion, is not based on a reading of the Constitution. But more easily and comprehensively explained in view of the greedy power politics that take place in situations of this nature.
A constitutional crisis will arise only if the President wishes that it be so
Otherwise the Constitution, as criticised as it is, specially, after the 19th Amendment, not only permits a very constitutional and lawful way out of the situation, but when read with the normative rules of Constitutionalism, highly promotes and requires the President to respect the Constitution and reconvene Parliament. Article 70 (7) provides the most expedient and least cumbersome manner in which it can be done. Furthermore, anybody with a pinch of Constitutional inkling knows that when a provision facilitates the reconvening of a Parliament after dissolution, for an emergency, it not only permits such an option but indeed, strongly suggests so, unless the President is not convinced that this is not an emergency! Otherwise, why should the Constitution speak about reconvening a Parliament already dissolved, in case of an emergency.
I do not wish to go in detail to the constitutional melee that would unfold in the event, a Constitutional crisis does occur. Rather I would like to highlight two aspects that would make it imperative that the legislative powers vested with the people and exercised by the Parliament, be respected and invoked. The mandate that the President received at the November Presidential polls is to be the Executive of the country and not to play the part of the legislature, by any stretch of the imagination. The control of public finances, vested with Parliament in terms of Article 148, is one of the most salient and integral parts of the sovereignty of the people as exercised by the Parliament. In the event the government needs to borrow more money for the purposes of countering the pandemic medically as well as for the restoration and revival of the civil life, such measures have to be done according to the constitution. That means that such monetary and fiscal measures have to be done by the Parliament and Parliament alone.
It cannot be delegated to the President, the Secretary to the President, Basil Rajapaksa, the Central Bank Governor, Army Commander or anybody else. It would be very likely that the state borrowing limits that have to be under the supervision of the Parliament will have to be exceeded, and the consequent raising of the ‘debt ceiling’ raised to a new level. Such a move could be constitutionally, democratically and lawfully done only through the mandate of the Parliament. Specially with the assurance given by the Opposition now, it seems that the President is not likely to face any resistance in taking the measures that an unprecedented calamity of this nature demands. Even in case the President wishes to impose emergency law in terms of Sec. 02 of the Public Securities Ordinance, it can be maintained only through the sanction of the Parliament, which means it has to be convened even if the President wishes to act under a law of emergency as extension is possible only with the consent of Parliament.
Sacrosanct right of the voter
The other aspect that I wish to highlight emanates from the fact that any attempt to hold a general election in a hurry, which will have to be the case, in terms of the Constitution, based on the date of the proclamation of dissolution, which was on 02nd March 2020. As the Election Commission informed the Secretary to the President, in the wake of the dissolution, the new Parliament had to be convened before 02nd of June 2020. But the Election Commission emboldened by the powers it was endowed with the 19th Amendment, did initially refuse to call an election on 25/04/2020 and subsequently, fixed 20/06/2020, tentatively, as it would seem, still emphasising the fact that it would be subject to the ground reality in terms of the pandemic situation.
Given the fact that Sri Lanka is not yet even near the flattening of the curve but rather facing an upsurge of the outbreak, it is very unlikely that a proper election could be held even by the 20th of June. If the Election Commission was compelled to hold it nevertheless, it would not be a free and fair election where the voter would be able to come to the polling booth and exercise the Sovereignty vested on him to appoint law makers to Parliament but a farce in the name of holding an election.
Constitutional experts in saffron robe
On the other hand, if the President were to reconvene the old parliament, a move that saffron robe wearing ‘Constitutional experts’ who flocked to the Presidential Secretariat a few days ago adamantly resist, then the Parliament could be alive till 01st of September as mandated by the People if not for the early dissolution, which of course is constitutionally allowed, by the President on 02nd March 2020. In such a scenario, the date before which the newly elected Parliament needs to be convened is 01st of December 2020, which one could be hopeful, is a date far enough for the pandemic situation to have subsided and some kind of normalcy returned, enabling the Election Commission to hold a decent, free and fair election general election, which will reflect the will of the people in exercising their sovereignty.
We do not want the sovereignty of the people exercised through the universal franchise subverted as has happened a few times in our electoral history, like the Presidential Elections of 1989 where a boycott and a ban of voting by the insurgents resulted in almost half of the registered voters not turning up and possibly causing an impact on the result as well as the 2005 Presidential Elections , where again , a prohibition by the LTTE to the Northern voter, quite possibly changed the outcome of the Presidential Election. Irrespective of party politics such erosion of and encroachment in to the power of the ballot, should not take place in the future, for whatever reason.
The price of another Constitutional quagmire
We underwent a so-called ‘Constitutional Crisis in October 2018, less than two years ago and the loss caused economically, let alone the international embarrassment, is huge. Yet given the nature of the crisis that we are in today, even if we manage to come out of the tunnel called ‘COVID-19’, with our main sources of income, expatriate workers, tourism and export oriented apparel industry crippled in an unprecedented manner, we need to do all that is possible to avoid such a conundrum. And we need to buckle up our seats for a global depression that will indeed be global and transnational, and of course, of a daunting nature. The people need to have the government they chose to take them through such rough and perilous waters.
Therefore, out of the several options available to the President, the only decent, constitutional, lawful and moral act that can be performed by the President, at this crucial point of time, is to reconvene Parliament. If he does that, he need not harbour any fear whether his party will win the elections whenever at a suitable time that may be. We are confident that such a move will be met with common approval and the President will be able to garner the support of those middle class and floating voters for his party, as he did last November. Yet, he stands only to lose, if he stubbornly disregards the ground situation and takes the risk of playing with an invisible enemy, of a very stealthy and wicked nature, that even superpowers such as USA and China are struggling to handle.
The President can prove whether he is as patriotic as some of his ardent supporters claim him to be or on the other hand, show that he is not so and in fact a pampered doll who had been blown out of proportion by virtue of belonging to the most powerful political family in the island, as his detractors suggest.
Cometh the hour, cometh the man, they say. How darker the hour could become is anybody’s guess!