The world including Sri Lanka is undergoing a pandemic crisis of colossal proportions. The Island nation however is in double jeopardy as it is in the grip of two crises simultaneously. One of course is the COVID-19 Health crisis inflicted globally by nature. The other being experienced by Sri Lanka is the Constitutional crisis which is essentially man-made. Complicating matters further is the fact that both the corona crisis and the Constitutional crisis are to some extent inter-twined in the Sri Lankan context.
Karu Jayasuriya, who was the previous Parliament’s Speaker (technically he remains Speaker until the new Parliament convenes), has observed very correctly that Sri Lanka is the only country facing the Coronavirus without a legislature. The parliament elected in 2015 has been dissolved. The envisaged elections to elect a new Parliament in 2020 are yet to take place because of postponement due to the COVID-19 pandemic. The deadline for the Vote on Account passed by the previous Parliament falls on April 30.
Even though the country is faced with a pandemic, Parliament has not been re-convened to cope with the emergency. There is also no indication by the President that he would rescind his gazette proclamation dissolving parliament. The chances of the postponed election -- earlier scheduled for April 25 -- being held soon seem remote at present. If so the possibility of a new Parliament meeting before June 2 as stipulated by the Constitution is highly unlikely. The country is heading for a crisis of great magnitude.
In spite of the pandemic hazard the Gotabaya Government seems keen on holding early parliamentary elections as the way out. There is a marked reluctance to examine other options. It wants the election that was scheduled for April 25 and subsequently postponed due to the pandemic to be held again as soon as possible. Immense pressure was exerted on the Election Commission (EC) in this respect.
New Date of June 20
The EC has now fixed the new date of June 20 for fresh parliamentary polls. However, the EC will review the situation on May 4 before finalising it. Given the fact that there has been a sharp rise in the number of coronavirus-affected persons in the past few days, it is very likely that the elections may get postponed again. There is also the argument made by some constitutional lawyers that if Parliament does not convene by June 2 the Gazette proclamation dissolving Parliament on March 2 becomes null and void. If so the old Parliament will get re-activated.
It is against such a backdrop that this article intends focusing in greater detail on the politics of postponing parliamentary elections amid a Pandemic. A brief re-run of recent events is necessary to place the matter in better perspective. President Gotabaya Rajapaksa dissolved Parliament on March 2, six months before its term was to end, by utilizing Article 70 of the Constitution. Elections were scheduled for April 25 with nominations closing on March 19. The freshly elected Parliament was to convene on May 14. This time frame was necessitated by provisions of Article 70 under which it was decreed that the new Parliament had to convene within three months of the dissolution of the old Parliament, which was on March 2. Thus it had to meet on or before June 2.
Although the COVID-19 emergency was in existence worldwide at the time of the Parliament dissolution, its impact was not fully realised in Sri Lanka when the proclamation was made on March 2. Ten days later on March 11 the World Health Organisation (WHO) declared the spread of coronavirus to be a global pandemic. Sri Lanka however, went ahead with the process of accepting the nominations of the candidates from March 12 to March 19. President Gotabaya told SAARC leaders in mid-march that elections will be held on April 25 as planned.
The Election Commission of Sri Lanka is the constitutional authority responsible for administering and overseeing all elections in Sri Lanka .Two hours after nominations closed at noon on March 19, the EC held a media conference and announced that the election scheduled for April 25 was being postponed indefinitely because of the spread of COVID-19. Election Commission (EC) Chairman Mahinda Deshapriya explained that the spread of the virus has prevented government employees from carrying out their duties as required and therefore the essential preparations for the poll have not been made. The election commission did not announce a fresh date for elections. Quipped Deshapriya, “Only COVID-19 itself can decide when we can hold the elections”.
Island-wide Curfew from March 20
The Govt declared an island-wide “curfew” from March 20, 2020 onwards. Despite occasional relaxations for brief periods of time, the curfew continues to be in force. Although the Sri Lankan Government and the officials went about the task of combatting COVID-19 in an efficient manner and did remarkably well in containing the coronavirus spread, it was soon apparent that a conducive climate for holding elections would not be possible even after April.
The EC sent two letters in the last week of March and the first week of April to President Rajapaksa saying that it was not possible to hold elections at the present time and to seek the opinion of the Supreme Court on the matter. The President’s secretary Dr. PB Jayasundara responding on behalf of his boss said the President would not refer the matter to court. It was made clear that fixing a new date for elections was the Election Commission’s responsibility. Subsequently Prime Minister Mahinda Rajapaksa also issued a statement where he emphasized that it was mandatory on the part of the Election Commission to announce new dates for the election. The Rajapaksa brothers made it clear that the “holding elections decision” ball was in the EC’s court.
It was against this backdrop therefore, that the three-member Elections Commission (EC) met on Monday April 20 in Colombo. The Election Commission comprises former Commissioner of Elections Mahinda Deshapriya, retired Legal Draftsman Nalin Abeyesekera PC and Ex-Jaffna University vice-chancellor Dr. Ratnajeevan Hoole. The April 20 conclave was to decide on a new date for the polls.
The three wise men of the Election Commission -- Mahinda Deshapriya, Nalin Abeyesekera and Ratnajeevan Hoole - met on April 20 as planned. In between the EC confabulations, the trio also met top officials of the health sector, postal services, government printer and other stakeholders to review the COVID-19 situation before deciding when polls could be held. Another meeting was held with all district secretaries who would be acting as the district returning officers at the election. Although the top brass of the Army and Police was expected to attend no one did so.
Health Officials Were Non-committal
The district secretaries said if things were somewhat normal, they required eight weeks to prepare for the polls. The health officials were non-committal and declined to provide specific guarantees of COVID-19 being brought under control. They said the Coronavirus spread would fluctuate between highs and lows for quite a while. The health authorities asked the EC to decide on the new election date.
The discussions among the EC members on holding elections were robust and incisive. The EC resolved to determine a date on that day itself for two reasons. One was that the EC did not want to forego the power of fixing a date. The other was to prevent the President from taking the upper hand and acting arbitrarily in the absence of a specific date for polls. If no new date was announced by the EC until April 25 the date of the postponed election, President Rajapaksa may have had the options of either holding staggered elections in “Corona-safe” districts or even resorting to an Island-wide referendum seeking the people’s consent to govern without Parliament being convened until the Corona spread was overcome. (Whether these options were legal or Constitutional is another matter)
Initially Deshapriya wanted to set May 28 as the date so as to meet the June 2 deadline. This was strongly rejected by the other two. It was pointed out that there had been a spurt in COVID-19 cases and that such an early Poll was impossible. The new date had to be as late as possible. Thereafter, the dates September 2 (five years after the 8th Parliament had met) and August 17 (five years after the 8th Parliament had been elected) were considered. Even though all three EC members concurred on fixing either one or the other of these dates, the EC chairman later changed his stance and wanted July 15. This was rejected. After much discussion a new rationale to fix a date was devised. One week was given for relaxing some curfews and ensuring the Virus spread was weakening and then providing seven weeks for election campaigning. Thus June 20 was fixed as the new Election Day.
Discussions with Political Parties
On April 21 the EC met representatives from all registered political parties. Since Ratnajeevan Hoole had returned to Jaffna, only Mahinda Deshapriya and Nalin Abeyesekera represented the EC at the discussions with political parties. The discussions were in two segments with one group of parties in the morning and another in the afternoon. The political parties protested strongly at not being consulted prior to the poll announcement being made. They also raised objections to an election being held at a time when the COVID-19 pandemic had still not been brought under control. They pointed out that campaigning for elections would aggravate the risk and emphasised the safety of the people.
Mahinda Deshapriya said he too was concerned about public health and safety. The EC Chairman said the June 20 date was by no means final. He said the situation would be reviewed on May 4. If the health situation in the country was taking a turn for the worse the June 20 date would be postponed he assured the parties.
According to some legal eagles the fact that the new Parliament would not be meeting within the three month period would automatically render the Mar 2 presidential proclamation invalid. Hence the 8th Parliament can now spring back to life they argue
In a very, very curious coincidence the new election date of June 20 also happens to be the birthday of President Nandasena Gotabaya Rajapaksa. Gota would be celebrating his 71st birthday on June 20. Some have commented in lighter vein that June 20 being fixed by the EC was a birthday present to the President. They point out that the presidential election held last year was on November 16 and that after winning the poll, Gota was sworn in as President on November 18. This was the birthday of Mahinda Rajapaksa. Interestingly enough this point was raised by ACMC Leader Rishad Bathiudeen at the EC Meeting. When the former minister accused the EC of favouring Gota by fixing the date on June 20, EC chairman Deshapriya responded sternly and dismissed Rishad’s charges. He explained that the new date was finalised to provide eight weeks’ time from the previous date of April 25.
Public Commitment from EC Chairman
What the opposition parties, notably the Sri Lanka Muslim Congress (SLMC) and the Tamil National Alliance (TNA) achieved in the talks with the EC was to get a public commitment from EC chairman Mahinda Deshapriya that the June 20 date was only provisional and that it could be postponed again on May 4 if COVID-19 circumstances necessitated it. This admission by the EC chairman of the situation being uncertain with another postponement being on the cards would be of great value to any party planning to go to Court challenging the holding of an election at this juncture. The Election Commission stating that even the June 20 date could be reviewed depending on the public health situation in the country could be cited to argue that conducting a free and fair election is not possible for many months.
Furthermore, it has also become clear from April 20 that a new Parliament cannot sit on June 2, because the EC has fixed June 20 as the date for the elections. Thus it could be argued that the Presidential proclamation is not valid anymore as the new Parliament is not going to convene on or before June 2. According to some legal eagles the fact that the new Parliament would not be meeting within the three month period would automatically render the Mar 2 presidential proclamation invalid. Hence the 8th Parliament can now spring back to life they argue.
Sumanthiran’s “Responsible Cooperation” Offer
It is also learnt that TNA spokesman MA Sumanthiran PC is mooting a proposal whereby all political parties represented in the 8th Parliament would make an offer of “responsible cooperation” to President Rajapaksa. The offer entails an assurance of support to the Government if President Rajapaksa would rescind the gazette proclamation of March 2 and revive the old Parliament until its term ends in August. The opposition parties would in turn pledge not to defeat the government in a vote or block any legitimate action of the Government.
This responsible cooperation offer is to ensure the governance of the country in a proper and lawful manner in compliance with the Constitution. Sumanthiran in an interview to a TV channel said he had drafted a document in this regard and was currently engaged in obtaining the consent and suggestions of other parties.
Apart from the EC decision-making, there was another significant occurrence on April 20. Lalith Weeratunga, former secretary to Ex-president Mahinda Rajapaksa, interviewed President Gotabaya Rajapaksa for TV. It was an occasion for the President to outline his policies and explain his position on contemporary issues. The genial Lalith Weeratunga’s leading questions were what one would call “full tosses” in cricket parlance. Gota responded in “polladi” fashion.
President Prepared To Cross Rubicon
Two of the questions and answers are reproduced here because of their relevance and importance. The President’s answers revealed his position on parliamentary elections, the Election Commission and constitutional issues. President Gotabaya Rajapaksa’s frank and forthright responses have made important issues “troublingly” clear to the discerning public. At this point of time President Rajapaksa is not prepared to rescind his gazette dissolving Parliament or reviving the previous parliament again. If elections are postponed again the President seems to be contemplating a tough course of “solo” action sans Parliament. In short President Rajapaksa is prepared to cross the Rubicon of necessity.
The two Q&A are as follows:
Q Your Excellency, there is another important issue for the people as well as this epidemic situation. When considering the long-term aspect, there should be a stable government. The Election Commission states that although the Parliamentary Polls scheduled were to be held on 25 April with the aim of successful completion of all these initiatives, it will not be possible to hold the elections on the scheduled day. What is your point of view in this regard?
“I won the Presidential Election held on 16 November 2019 with a very clear mandate of 6.9 million votes. I have presented a manifesto called ‘Rata Hadana Saubhagyaye Dekma’ to the people. The majority of the people in this country have democratically elected their President to implement that manifesto. Even though the people had approved my vision for the country, I had to work with the Parliament elected in August 2015. That Parliament did not represent the present public opinion. Since there was no majority in Parliament, I had to form a minority government.
“When I took office as President, there was no budget passed for the year 2020. The previous Government was ruling the country through a Vote on Account. At that time, the country was already facing a major economic crisis. A new budget or else an interim budget were needed to implement my policies as people expected. As we promised, to allocate more funds to develop the fields of education, technology and agriculture, to generate new employment opportunities, to rebuild the collapsed economy, the Government needs to possess the ability of handling finance.
“This is why I decided to dissolve the Parliament on 2 March at the first time I got the opportunity to do so according to the powers vested in me by the Constitution, and to hold an election on 25 April and to call the new Parliament on 14 May with the aim of depicting the true public opinion. Accordingly, the Election Commission was vested with the complete freedom and power necessary to conduct an independent election. The foremost obligation and duty of the Election Commission is to ensure the supremacy of the people by holding elections at the right time while respecting the democratic right of the people to elect their representatives by a vote. But all of you know that the Election Commission has taken steps to postpone the election indefinitely in view of the current epidemic situation.
“According to the Constitution, the new Parliament should meet within three months after the dissolution of the Parliament. Consequently, the last date for the new Parliament to be convened is 2 June. It is the independent Election Commission that has to decide the date on which the elections will be held. The independent Election Commission has the right to hold the election appropriately under the present circumstances. If they want, they can take several days for the election.
“The Election Commission has wide powers regarding holding elections under the current constitution. I am not ready to pressurise the independent Election Commission to hold or postpone elections. I have done everything so far constitutionally and have announced the date for the new Parliament to be convened. Unless a new Parliament is elected by 2 June, I will not be able to summon it. It has to be done on a future date. Nevertheless, under whatever reason I will not be able to recall the old Parliament. I don’t even have a legal right to do that.
“To date, my Government has taken all the necessary steps to curb the new coronavirus. A number of groups including all the major parties in the country have submitted their nominations correctly for the election. Therefore, the responsibility of holding the elections is now with the independent Election Commission. The Government has given it all the legislative support it needed in this regard. I am ready to call the new Parliament once the election is over and MPs are elected.”
Q Your Excellency, at the moment various Opposition groups are issuing statements to the effect that there is no environment to hold the elections and the Parliamentary Elections should be further postponed. They do not even state when it should be held. What is your opinion on this?
“Today, the people have the opportunity to understand the disguised motives of those who dream that the country could be taken into a constitutional crisis by continuous calling for the postponement of the election. I remind everyone at this point that there is no special legal issue as to what the country needs and how it can be done and it is constitutionally very clear what should be done and who has the ultimate responsibility.
I hope to fulfil the promises made to the people by implementing policies included in the ‘Rata Hadana Saubhagyaye Dekma’ while successfully facing the threat of the new coronavirus which has brought the whole world to its knees. I expect all of you, who love the country, to render your valuable and necessary support in this regard.”
D.B.S. Jeyaraj can be reached at firstname.lastname@example.org