Sri Lankan president Gotabaya Rajapaksa dissolved Parliament on the 02 March 2020, six months ahead of the expiry of the duration of the then Parliament.
By virtue of the powers vested in him by Article 70(1) and 70(5) of the Constitution of the Republic, to be read with Article 33(2)(c) thereof and in pursuance of the provisions of Section 10 of the Parliamentary Elections Act (PEA) No. 1 of 1981, the President issued the Proclamation by gazette No. 2165/8 of 02.03.2020 (a) dissolving the Parliament with effect from midnight of 02 March, (b) summoning the new Parliament to meet on the 14 May 2020 and (c) fixing 25 April 2020 as the date for the election of Members of new Parliament.
Lex Non Cogit Ad Impossibilia
Article 70(5)(a) states the Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Under Article 70(5)(c), by a subsequent Proclamation, the President can also postpone this date of first meeting of the new parliament, but that date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the "Original" Proclamation.
Therefore, the Constitution is very clear that the country can run only for three months without a Parliament, after the dissolution of parliament [except under rare circumstances contemplated under Article 70(6), whereat it could go up to four months]. The new Parliament should first meet before the expiry of three months from the date of dissolution of Parliament, and so, the Election for the election of members of parliament should be fixed within these three months. The date of the election within these three months should be first fixed by the President, but this date could be later varied by the Elections Commission, due to some emergency or unexpected exigencies of the situation, under Section 24(3) of the PEA. However, the Election Commission is still bound by Article 70(5)(a) of the Constitution, to re-fix the election on a next date, which should still be within the three months from the date of dissolution of the Parliament by the President, so that the President is not prevented from summoning the new Parliament for the first time within the mandatory three month period required under Article 70(5)(a) or 70(5)(c) of the Constitution. The Commission is not empowered, by Section 24(3) of the PEA to refix the Elections on any date it thinks fit, which may fall beyond the said three month period.
In the circumstances, it is very clear that the fixing of the Elections on the 20 June 2020 by the Elections Commission is ultra vires the PEA and the Constitution, illegal and ab initio null and void. It is, one may reasonably suppose, because of this obvious legal hurdle that Elections Commission requested the President to refer the matter to the Supreme Court to decide on the date of the election to be held on a date that may fall even after 02 June. The President refused, and the Commission had no option.
One may conclude that the political pressure from the government paved the way for the Elections Commission to take this obviously "impossible" decision. It is thus true when the President himself refers to the maxim, "the Law does not compel a man to do that which is impossible" (Lex Non Cogit Ad Impossibilia), but, on the contrary, Politics does.
If the elections cannot be held due to some exigencies of the situation, like today when a pandemic has hit, within the said three month period from the date of dissolution of parliament and the date of first meeting of the new parliament, such situation can and should be considered as an emergency contemplated under Article 70(7) of the Constitution. Under Article 70(7), at any time after the dissolution of Parliament, if the President is satisfied that an emergency has arisen of such a nature that an earlier (i.e.before three months) meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament could be be operative till the conclusion of the General Election and be dissolved thereupon.
But, for reasons best known to him, the President has asserted that he is not gonna recall the parliament dissolved, and has decided to flout Constitutional provisions.
The decision of the Elections Commissions raises serious issues of rule of law and questions of democratic procedure. Most importantly, this illegality of the Commission's decision will render the presidential proclamation dissolving the Parliament on the 02 March ineffective and invalid, as the constitutionally permitted period to hold the election has lapsed.
An acute constitutional crisis is imminent, if these constitutional questions are raised.
By virtue of the powers vested in him by Article 70(1) and 70(5) of the Constitution of the Republic, to be read with Article 33(2)(c) thereof and in pursuance of the provisions of Section 10 of the Parliamentary Elections Act (PEA) No. 1 of 1981, the President issued the Proclamation by gazette No. 2165/8 of 02.03.2020 (a) dissolving the Parliament with effect from midnight of 02 March, (b) summoning the new Parliament to meet on the 14 May 2020 and (c) fixing 25 April 2020 as the date for the election of Members of new Parliament.
Lex Non Cogit Ad Impossibilia
Article 70(5)(a) states the Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Under Article 70(5)(c), by a subsequent Proclamation, the President can also postpone this date of first meeting of the new parliament, but that date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the "Original" Proclamation.
Therefore, the Constitution is very clear that the country can run only for three months without a Parliament, after the dissolution of parliament [except under rare circumstances contemplated under Article 70(6), whereat it could go up to four months]. The new Parliament should first meet before the expiry of three months from the date of dissolution of Parliament, and so, the Election for the election of members of parliament should be fixed within these three months. The date of the election within these three months should be first fixed by the President, but this date could be later varied by the Elections Commission, due to some emergency or unexpected exigencies of the situation, under Section 24(3) of the PEA. However, the Election Commission is still bound by Article 70(5)(a) of the Constitution, to re-fix the election on a next date, which should still be within the three months from the date of dissolution of the Parliament by the President, so that the President is not prevented from summoning the new Parliament for the first time within the mandatory three month period required under Article 70(5)(a) or 70(5)(c) of the Constitution. The Commission is not empowered, by Section 24(3) of the PEA to refix the Elections on any date it thinks fit, which may fall beyond the said three month period.
In the circumstances, it is very clear that the fixing of the Elections on the 20 June 2020 by the Elections Commission is ultra vires the PEA and the Constitution, illegal and ab initio null and void. It is, one may reasonably suppose, because of this obvious legal hurdle that Elections Commission requested the President to refer the matter to the Supreme Court to decide on the date of the election to be held on a date that may fall even after 02 June. The President refused, and the Commission had no option.
One may conclude that the political pressure from the government paved the way for the Elections Commission to take this obviously "impossible" decision. It is thus true when the President himself refers to the maxim, "the Law does not compel a man to do that which is impossible" (Lex Non Cogit Ad Impossibilia), but, on the contrary, Politics does.
What was legally possible ?
If the elections cannot be held due to some exigencies of the situation, like today when a pandemic has hit, within the said three month period from the date of dissolution of parliament and the date of first meeting of the new parliament, such situation can and should be considered as an emergency contemplated under Article 70(7) of the Constitution. Under Article 70(7), at any time after the dissolution of Parliament, if the President is satisfied that an emergency has arisen of such a nature that an earlier (i.e.before three months) meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament could be be operative till the conclusion of the General Election and be dissolved thereupon.
But, for reasons best known to him, the President has asserted that he is not gonna recall the parliament dissolved, and has decided to flout Constitutional provisions.
The decision of the Elections Commissions raises serious issues of rule of law and questions of democratic procedure. Most importantly, this illegality of the Commission's decision will render the presidential proclamation dissolving the Parliament on the 02 March ineffective and invalid, as the constitutionally permitted period to hold the election has lapsed.
An acute constitutional crisis is imminent, if these constitutional questions are raised.
Sanjaya Wilson Jayasekera, LL.B, LL.M.
Attorney-at-Law.
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