The Centre for Policy Alternatives (CPA) has issued a brief guide highlighting legal concerns regarding the Government response to the COVID-19 outbreak in Sri Lanka. Following is an edited version of the CPA statement:
Actions to contain the COVID-19 outbreak were made with Parliament being dissolved by President Gotabaya Rajapaksa on March 2, 2020. While acknowledging those in the frontlines working to contain the virus spread, the CPA aims to ensure the Government can deal with the pandemic efficiently, lawfully and constitutionally.
Parliament was dissolved on March 2, 2020, when there was no health emergency. Calls were made to postpone elections, but to no avail. Neither the Constitution nor the Parliamentary Elections Act prevents the President from withdrawing the gazette dissolving Parliament. On March 19, with nominations concluded, the Election Commission (EC) postponed elections. Parliament now remains dissolved with uncertainty as to when elections will take place. Despite the gazette summoning the new Parliament on May 14, 2020, no such assembly will exist to meet on that date.
This impacts the fundamental rights of citizens. If the President had withdrawn the March 2 gazette, Parliament would continue till end August. Article 148 gives Parliament full control over public finance. This raises concerns on the President’s ability to make appropriations, and may give the Executive unfettered control over public finance, with no checks and balances. It is therefore critical that Parliament is summoned to pass
Without a functioning Parliament, there is concern on how the unprecedented challenge of COVID-19 can be faced, with the need for new frameworks. Not summoning Parliament prevents the Government from using existing mechanisms to face the present emergency. The different arms of Government must function effectively to respond to the emergency, while respecting the Constitution and rule of law. Inaction and/or unwillingness in this regard will have serious and long-term consequences.
The President issued a gazette notification dissolving Parliament on March 2, 2020 which stated:
i) Parliament would be dissolved at midnight on March 2, 2020.
ii) Parliamentary Elections would be held on April 25, 2020.
iii) Nominations would be accepted from March 12-19.
iv) New Parliament would commence on May 14, 2020.
The President had from December 2019 pledged to dissolve Parliament when it completed four-and-a-half years. When he dissolved Parliament, there were no COVID-19 cases in Sri Lanka, despite a growing crisis in China, Europe, and East Asia. The first confirmed local case was reported on March 11, and by March 18 the number was 53. During this period, political parties and election monitors called for elections to be postponed until the threat had abated.
The Government declared holidays on March 16, 17 and 19. EC members met health officials to discuss contingency measures. After nominations, the EC informed that elections would be postponed.
Current position on elections
The EC issued a gazette announcing elections in all 22 electoral districts, as per section 24 (1) of the Parliamentary Elections Act. However, a further EC gazette on March 21 said the poll could not be held as scheduled due to the COVID-19 outbreak. It said the EC would appoint a date after May 14 for the poll, to be notified in due course. So Parliament remains dissolved with no exact date for elections. While the nominations have ended, candidates’ names for each electoral district have not been gazetted.
Legal consequences of postponing polls
Article 70 (1) of the Constitution allows the President to dissolve Parliament after a lapse of four-and-a-half years. If the President had not dissolved Parliament, it would have continued until September 1, 2020.
The EC postponed the poll under section 24(3) of the Parliamentary Elections Act. Until the EC issued the postponement order, there was nothing in the Constitution or Elections Act preventing the President from withdrawing the March 2 gazette. The President cannot arbitrarily withdraw the gazette. But in the present circumstances he would have been justified in doing so, and it is unlikely any accusation of arbitrariness would have been raised. The withdrawal would have retracted the dissolution of Parliament. But while the postponement of the elections amid COVID-19 is welcome, it raises some concerns.
The Election Campaign
The EC’s decision to postpone the election does not impact campaigning. This could have led to candidates campaigning and spreading COVID-19. The EC mitigated this by not issuing the gazette with candidates’ names and serial numbers. Without the official serial number, a candidate can only engage in limited activities. Even without ‘curfew’, the Police Ordinance and the Code of Criminal Procedure can prevent public campaigning and election meetings that could exacerbate the COVID-19 spread.
Dissolution of Parliament
The EC order postponing elections does not undo the President’s proclamation dissolving Parliament. At present, Parliament remains dissolved as per Article 70 of the Constitution, with no date for elections or reconvening a newly-elected Parliament. This raises several legal challenges.
1) Sovereignty of the People
Article 3 of the Constitution says the sovereignty of the people includes powers of the government, fundamental rights and the franchise. Parliament, comprising the people’s elected representatives, exercises the people’s legislative power. The Supreme Court (SC) has determined the failure to hold timely elections violates the franchise and the people’s fundamental rights. While the EC had little choice in postponing the election, it has nonetheless curtailed citizens’ fundamental rights. If the President had withdrawn the March 2 gazette dissolving Parliament, it would not have violated the people’s franchise, as Parliament could have continued
till end August.
2) Public Finance
Article 148 of the Constitution gives Parliament full control over public finance, including control over Government income/revenue and expenditure. The SC has determined it is mandatory for Parliament to retain full control of public finance. These obligations also entail:
(i) Control over imposition of taxes, levies, rates and debt.
(ii) Allocating funds and setting expenditure limits to government departments and agencies.
(iii) Conducting audits and checks.
The SC has determined these controls act as a check on the Executive. Parliament business is on public record. Bills, Motions and Resolutions are also public. Government and opposition members freely raise questions, make statements and debate. Moving public finance outside this domain and giving the Executive unfettered control would not only be unconstitutional, but also unwise, and against the public interest.
There is one exception to this rule, contained in Article 150(3):
“Where the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law, he may, unless Parliament shall have already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.”
This provision relates to a specific situation, and applies only where:
(i) Parliament has not made provision for expenditure for the period after the dissolution and the commencement of a newly-elected Parliament.
(ii) The President can make allocations from the Consolidated Fund, but only to the extent “necessary for public services”.
(iii) The time period for this allocation is limited.
The new government did not present a budget. Instead, Parliament passed a Vote on Account on October 23, 2019, covering the period from January 1, 2020 to April 30, 2020.
On April 30, appropriations made by Parliament come to an end. The President’s powers as per Article 150(3) can only be triggered after this. As the March 2 gazette remains operational, the President can only make payments “necessary for public services” until August 14, 2020 (i.e. 3 months from when the new Parliament is summoned to meet). So, not only must elections be held before that, Parliament must also pass an Appropriation Bill before August 14. With the COVID-19 pandemic, this seems unrealistic. While what is “necessary for public services” is not defined, the Constitution contemplates only expenditures deemed essential for public services until full provisions are made through a budget approved by Parliament. The government is further constrained by laws on the amount of local and foreign debt, which can only be changed by other Parliamentary Acts.
The Constitution has several mechanisms for the President to resolve this difficulty regarding finance. The President can use Article 70(7) to summon Parliament citing the prevailing emergency. Once Parliament is summoned, it can pass the appropriations needed to deal with the pandemic. In the present context, it unlikely any opposition party would deny the government funds needed to deal
with the pandemic.
The added advantage of Article 70(7) is that Parliament will stand dissolved upon the termination of the emergency, or upon the conclusion of elections. This would further ensure that elections take place without delay.
3) Special Powers for Public Emergencies
Steps taken by the Government to prevent the COVID-19 spread in Sri Lanka include:
Placing individuals in quarantine within their own homes and government-run facilities.
Requesting persons who have returned to Sri Lanka from certain countries to register with health officials, and tracing those not registered.
Declaring holidays to prevent mass gatherings.
Setting up mechanisms to coordinate delivery of food and other essential items.
While some of these had a clear legal basis, others were opaque. The Government can deal with the lack of legal basis in the short term, but the long-term consequences
"Supreme Court (SC) has determined the failure to hold timely elections violates the franchise and the people’s fundamental rights"
COVID-19 represents unprecedented challenges for the State with consequences for human life, rights, governance and the economy. The Government must set up accountable, transparent and effective administrative and decision-making structures. It cannot delay establishing such mechanisms until a new Parliament is elected. The President should move to summon Parliament under Article 70(7) of the Constitution.
But the Government seems reluctant to summon parliament. By not doing so, it is depriving itself the tools to more effectively deal with COVID-19, including not using existing legislation to deal with emergencies. These laws grant wide government authority and discretion in handling public emergencies. But they require limited Parliamentary oversight after the President has declared a public emergency.
Parliament must be summoned to assist the Executive in discharging its functions in an emergency. The SC has pointed out that giving open ended authority to the Executive to handle emergencies could lead to a misuse of power, and cause arbitrary, anti-constitutional acts. Our legal system requires the different arms of Government to function and respond to the emergency in a manner that respects the Constitution and rule of law.