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‘Legally the old parliament can now sit’ - Sumanthiran

24 Apr 2020 - {{hitsCtrl.values.hits}}      

  • The Court doesn’t create the law or the situation. So, it’s convenient if the court says so, because there’s certainty
  • I think more than at other times, the functioning of a parliament is vital now

The political landscape in Sri Lanka is on the brink of another crisis with President Gotabaya Rajapaksa insisting that he will not reconvene the old Parliament despite strong pressure from the opposition.The opposition is now considering reaching a consensus on the steps to be taken while assuring the President the fullest support in Parliament for all steps taken to address the coronavirus pandemic.Tamil National Alliance (TNA) spokesman and Constitutional Lawyer M.A. Sumanthiran PC told Dailymirror in an interview that even the Quarantine Act, which the government is using in its fights against the coronavirus, is outdated and, like most other countries, a Coronavirus Act must be introduced to Parliament to deal with the crisis 
more effectively. 
Excerpts of the interview: 

 

 

Q   Legally, what is the current status of Parliament?

The legal position is that the 8th Parliament, which was supposedly dissolved on the 2nd of March, has now sprung back to life. That’s the legal position. The reason I say that is, the president exercised the powers given to him under Article 70 of the Constitution and ordered its dissolution. Now that power is given to him under Article 70, but that power is subject to certain conditions. Now one of the conditions is that he can do that only after four years and six months from the time parliament sat. Now that is why when President Maithripala Sirisena ordered the dissolution of parliament on the 9th of November 2018 the Supreme Court decided that was null and void. 
Now about this pending void, the court doesn’t have to declare it to be void. But sometimes, it’s convenient to have a court to say so. Because even when you go to court that’s what you are arguing about. The Court doesn’t create the law or the situation. So, it’s convenient if the court says so, because there’s certainty. But that doesn’t mean that it’s valid merely because a court hasn’t still said so.

 

 

"So, if the president dissolves parliament after four and a half years, but doesn’t give the date for a new parliament to meet, then that dissolution is void. The reason why it is said and then resaid is that, where it says he can later change that date"


Then another condition and that is, a new parliament must sit within 3 months of dissolution and that’s a strict condition. It’s repeated in Article 70 where it says that the date of dissolution itself must be specified and also specify the date on which the new parliament will meet, which date cannot be longer than three months from the date of dissolution. So, if the president dissolves parliament after four and a half years, but doesn’t give the date for a new parliament to meet, then that dissolution is void. The reason why it is said and then resaid is that, where it says he can later change that date. Nevertheless it goes on to say that it cannot be beyond three months from the date of dissolution. It is reiterated. 
So whatever happens the country cannot be without a parliament for longer than three months is in principle, an unshakeable condition that is attached to that power to dissolve, like the one that says before four and a half years you can’t do it. And even when you do it, parliament has to meet within three months of that dissolution. 
So that is why I say, now it has become clear from April 20 that a new parliament cannot sit on June 2, because the Elections Commissioner has fixed June 20 as the date for the elections.

 

 

  • Curfew illegal and can be challenged
  • No accountability for expenses
  • Move to seek consensus among opposition
  • The legal position is that the 8th Parliament, which was supposedly dissolved on the 2nd of March, has now sprung back to life. That’s the legal position
  • A new parliament must sit within 3 months of dissolution and that’s a strict condition
  • I think more than at other times, the functioning of a parliament is vital now

 

 

Q   If the president is adamant on the fact that he is not going to reconvene parliament and as you say, legally, basically parliament is in force, what happens?

This can be resolved in one of three ways. One is, he (president) can recognise the legal position and for the sake of certainty he can publish a proclamation withdrawing his earlier proclamation. 
Secondly, if somebody goes to court, like we did last time, court recognises the legal position.
Third, the Speaker can recognise the legal position and under the powers vested on him under the standing orders of parliament, he can convene parliament. 
Whether they do it or not is another question, but these are the options available. 

Q   So technically all the former MP’s are still MP’s now?

Yes, they are.   

 

 

"During dissolution there is a three-month gap that is given. But if it is going to be longer than that, and the President and cabinet function without answerability, that’s a very serious issue"

 

 

Q   If, from an outsider’s point of view, it seems that the country seems to be moving forward, that things are being done, specially at a time like now, with the coronavirus, and the government seems to be doing everything, and ask, do you need a parliament to run the country, when the president is doing things on his own, or why do we need the parliament, how would you respond?

I think more than at other times, the functioning of a parliament is vital now. Three reasons: one is, we need specific legislation to deal with this issue; in all the countries in the world, the parliament has passed legislation to deal with this issue. This is a novel issue. Unprecedented. Our Contagious Disease Act is about 150 years old. The Quarantine Act is over 100 years old. We never envisaged a situation like this.  
In the UK they passed a law calling it the Coronavirus Act. India passed a law and even Italy passed a law amidst all that was happening. Singapore amended its Infections Diseases Act. The lawmaking power is exclusively given to the legislator and nobody else. In a county where the rule of law is the bedrock of its governance structure you must rule by law and not by executive dictate as is happening now. Like the curfew, for instance. A curfew can be declared while applying many laws. You can easily pass it. But every one of those requires a gazette to be made.

 

 

"This is a novel issue. Unprecedented. Our Contagious Disease Act is about 150 years old. The Quarantine Act is over 100 years old. We never envisaged a situation like this"

 

 

Q   So you are saying this curfew is illegal?

Yes, it is illegal. Totally illegal because not a single gazette under any of the Acts which provides for curfew has been issued. You don’t need a State of Emergency for that.  Even without a State of Emergency being declared you can impose curfew, but you must gazette the times, areas, from whom curfew passes can be obtained, all of that must be specified in the gazette. And it comes into effect upon the publication of the gazette.
Just because no one is questioning this it continues. We are questioning, but we are encouraging people to obey it because that’s what is necessary. But that doesn’t mean you can bypass certain safeguards in democracy and do everything you want.

 

 

" But this curfew has now lasted for more than a month. So there must be powers vested in somebody by law to do it. Parliament must sanction that and give that power to somebody and legitimise it"

 

 

Q   So a civilian can actually, purely on a legal stand, go to the street and question the Police on the basis under which the curfew has been enforced?

Yes he or she can. And that’s dangerous. Nobody is doing that because everybody understands the situation in the country. But we can understand if it lasts for a few days or weeks. But this curfew has now lasted for more than a month. So there must be powers vested in somebody by law to do it. Parliament must sanction that and give that power to somebody and legitimise it. That is one. Then Parliament also has full control over public finance. Nobody else can have control over public finance. This is a crisis where money is needed. So sanction must be given by Parliament and Parliament alone can do that. Some opinion is given that during dissolution the President can take money from the consolidated fund and he is doing that. But that also has conditions. It says if Parliament hasn’t made provision then the President, for three months, can draw from the consolidated fund for public services. That is to pay public sector salaries and things like that only if Parliament hasn’t made provisions. But Parliament has made provision already through a Vote on Account that continues till April 30. So when there is a provision made he cannot draw for anything else. And even if he does its only for salaries. So that is being breached. That is a very serious accountability issue of public finance. Parliament can easily sanction that.   Not one since members of Parliament will block that. And the government knows that. The Opposition has said it publicly, that whatever needs to be done will be done. 

 

 

" So whatever happens the country cannot be without a parliament for longer than three months is in principle, an unshakeable condition that is attached to that power to dissolve, like the one that says before four and a half years you can’t do it"


There is also this oversight function of Parliament, which is very important. Oversight over the Executive is with Parliament. The Constitution very specifically says that the President is answerable to Parliament.  The Cabinet of Ministers are answerable to Parliament. During dissolution there is a three-month gap that is given. But if it is going to be longer than that, and the President and cabinet function without answerability, that’s a very serious issue. This was demonstrated on January 24 and February 5 this year where the Opposition Leader raised the issue of the coronavirus in Parliament, including why we have not closed our borders. The Minister of Health gave a poor response. But that tells you what Parliament can do. If the government had responded at that time, and acted, and closed our ports we wouldn’t have had a single person infected, except that Chinese lady. The Government didn’t do that because they were preoccupied with somehow conducting the election and obtaining a majority. 

 

 

" The lawmaking power is exclusively given to the legislator and nobody else. In a county where the rule of law is the bedrock of its governance structure you must rule by law and not by executive dictate as is happening now"

 

 

Q   Now we have a situation where the Government has taken measures which have somehow worked and the situation is under control. But conducting an election will widen the risk more. And can we actually campaign?

Can we even ask the people to come out and vote? We can’t. We have informed this to the Elections Commissioner. So its an indefinite period which we are staring at.

Q   What is the opposition planning to do if this situation continues?

Well we are trying to reach a formal consensus saying that we will fully support the Government in its efforts to address the coronavirus issue and further state that no effort will be taken to defeat the Government in Parliament and this pledge is being made unconditionally during this time. 



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