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[The view expressed in this article is of the Author’s, not of Common Views’.This article is published on the ground that Common Views gives a platform to express various alternative views on an issue. It also should be noted that there are many dissenting views on this topic apart from the Author’s , of this article.]
Following the postponement of the General Election to the 20th of June, 2020, claims have been made to the effect that the dissolution of Parliament effected on the 3rd of March this year by the President has been rendered invalid.
The reason adduced in support of such claims appears to be that the Constitution does not allow the Country to be without Parliament beyond a period of three months and that the postponement of the Election to the 20th of June meant a period without Parliament for more than three months which is not permissible in terms of the provisions of the Constitution and that therefore the dissolution of Parliament by the President has been rendered void.
First of all it needs to be pointed out that there is no legal basis to support the claim that not holding the Election within a period of three months brings back to life the Parliament that was lawfully dissolved.
The requirement that the new Parliament should meet within a period not later than three months[Article 70(5)] is made on the basis that such period would be sufficient to hold the election under normal circumstances. It is in line with that requirement that S 10 of the Parliamentary Elections Act No 1 has stipulated the time periods for nomination and
the holding of elections.
Further, the three month period within which new Parliament is required to meet is not a rigid rule as Article 70(6) permits four month period for the first meeting of the new Parliament in case Presidential Election intervenes between the date of dissolution of Parliament and the date fixed for the first meeting of the new Parliament in terms of Article 70(5). This means that the first meeting of the new Parliament can takeplace even after a period of three months under special circumstances.
The question here is that a Presidential election is not intervening now and how come a situation where the new Parliament does not meet within a period of three months can be permitted thereby allowing the Country to be without Parliament for such a period. Moreover, in case the situation in the Country demands further postponement, is the Country to be run without Parliament for so long?
The answer is that though the reason stated in Article 70(6) and the reason for the Country to be without Parliament now are different, the fact remains that the date fixed for the Election now is within the period permitted in Article 70(6) and the claim that the dissolution has been rendered invalid owning to the postponement of the election is untenable in view of their own claim that the Country cannot go on for more than three months without a Parliament.
Furthermore, what is the legal basis for the claim that the absence of a new Parliament beyond the said period brings back to life the old Parliament?
It must be made clear here that the Constitution has not envisaged the absence of Parliament even for a day. The Article 70(7) which empowers the President to summon Parliament when there is an emergency situation keeps the Parliament alive even when it is not in session. If Parliament is not in existence owing to dissolution, the President cannot summon it under Article 70(7).
However it should be remembered here that the Parliament that is summoned under Articles 70(7) is not a fully fledged Parliament and that Parliament is no more. It is an emergency Parliament. This Parliament cannot pass an impeachment motion against the President or a no confidence motion against the Government. This Parliament cannot approve money utilization from the consolidated fund either. This Parliament can only provide for matters that are of emergency nature.
For instance, If a no confidence motion is passed against the Government, the President will be required to appoint a new Prime Minister and a Cabinet of Ministers as the Cabinet of Ministers would stand dissolved. Article 47 deals with Cabinet of Ministers after dissolution of Parliament in terms of which no new Prime Minister even when the Prime Minister resigns or removed can be appointed, nor death, removal or resignation of the Prime Minister will render the Cabinet of Ministers dissolved. The function of the Prime Minister has to be assigned to another Minister in such an event. The same applies even in respect of a Minister. No former member of Parliament outside the existing Cabinet despite becoming member of Parliament on account of Parliament being summoned under Article 70(7) can be appointed Minister. This continues until the conclusion of the General Election.
This provision is enshrined in the Constitution despite the existence of Article 70(7), which means that this emergency Parliament cannot entertain any business which is not of any emergency nature.
Approval of Expenditures From Consolidated Fund
According to Article 148 of the Constitution, Parliament has full control over public finance. No tax, rate or any levy shall be imposed….except by or under the authority of a law passed by Parliament or of any existing law.
According to Article 150(1)&(2), no sum shall be withdrawn by the Minister of Finance from the Consolidated Fund unless such sum has been granted to any specified public services by Parliament for the financial year.
However, Article 150(3) has an exception. It states, “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.”
Here, whilst the fact remains that Parliament has full control over public finance the President is vested with the power of authorizing expenditures from the Consolidated Fund if Parliament has already not made any provision.
This means that Parliament cannot be summoned for the sole purpose of approving expenditures when it stands dissolved because there is no emergency with regard to expenditures in order to warrant the summoning of Parliament under Article 70(7) as the President has been vested with that authority.
Even if Parliament is summoned under Article 70(7) for other purposes, that Parliament cannot approve expenditures since this emergency Parliament stands devoid of that power in view of the fact that that power has been transferred to the President during the period when it stands dissolved.
A question may arise here as to what is meant by “ Parliament has full control over public finance “ if Parliament is to stand devoid of that power during the period of dissolution. The answer is that when the new Parliament meets, it can call into question any impropriety in respect of such expenditures. Further, the Sri Lankan Parliament is not on the same footing as the British Parliament is.
The British Parliament is sovereign ( at least theoretically) and all powers belonged to that Parliament. It can make or unmake any law. Sri Lankan Parliament does not have any original power. The latter obtains its power from the Constitution in terms of which the original power belongs to the People ( Article 3). The Sri Lankan Parliament has only so much of power as has been vested in it by the People through the Constitution.
Accordingly, the authority with respect to expenditures during dissolution of Parliament is vested with the President and Parliament cannot usurp that power from the President even if summoned under Article 70(7) for any other emergency purposes.
From when President can authorize expenditures?
For the President to derive the power under 150(3), there are conditions. They are; Parliament should be under dissolution. Parliament should not have passed any appropriation Bill into law for that financial year and no provision should have been made. In our case, the appropriation Bill was passed only up to the 30th of March, 2020, which means that appropriation Bill has not been made for the financial year and that therefore no provision has been made.
Under the circumstances, the President has derived powers in terms of Article 150(3). The next question is that for how long he can authorize expenditures. “ …….he may……..authorize……..until the expiry of a period of three months from the date on which the new Parliament is summoned to meet”. [Article 150(3)]
Some interpret this as a period of three months from the date on which the new Parliament is summoned to meet, which is incorrect.
Here, the time of authorizing begins at the point of time when provision has not been made during dissolution. That point of time begins from 1st of May. How long can he authorize? Until that time. Here, that time is the three month period.
Therefore this can be summed up as ‘from the time when provision has not been made during dissolution which can go on until the date on which the new Parliament meets and from there for another three months.
If the phrase reads as “ for a period of three months from the date…..” then it is only three months because the preposition “ for “ denotes a duration whereas the preposition “until” denotes a point of time. That point of time is the ending point of the period referred to therein.
This extra three month period even after the first meeting might have probably been given since the new Parliament would not be able to have the budget passed at its first meeting. It will take a bit of time for its preparation, presentation and for the debate etc.
Way out from the current constitutional crisis
No law can provide for all unforeseeable circumstances. Particularly, the Constitution, which is generally said to be a living document that cannot easily be amended as and when needed as in the case of ordinary laws in view of the procedural limitations cannot provide for all unforeseeable circumstances explicitly.
However, in such circumstances, the provisions of the Constitution should, as far as possible, be interpreted to provide for some measures. This is what has given birth to the method of non-originalism in America and the western world in respect of interpretation of the Constitution.
In Sri Lanka, the Parliamentary Elections Act No of 1981 has not provided for the postponement of the General Election in the whole Country. What it has provided in terms of S 24(3) is for the postponement of the election in one or two districts due to any unforeseen circumstances.
This provision does not take into account the date on which the new Parliament has the first meeting because the election postponed in terms thereof does not affect the first meeting of the new Parliament in view of Article 69 which empowers Parliament to act notwithstanding vacancies.
However when the Elections Commission was faced with an emergency situation where it had to postpone the election in the entire Country, it did not have the legal teeth. It had to have recourse to a provision [S 24(3)] which is meant for a different situation.
Further, this postponement had to disregard a constitutional requirement to hold the election within a period of three months to enable the new Parliament to have its first meeting within the said period thereby triggering a constitutional crisis in the Country. All this happened because there was no explicit provision to handle this situation.
It is in view of the reality that the Constitution could not provide for all unforeseeable circumstances, Article 70(7) has been embodied in the Constitution. This particular sub article needs to be examined.
When emergency regulations are made by a proclamation under the Public Security Ordinance at a time when Parliament stands dissolved, Parliament is summoned in terms of Article 155 of the Constitution. Then, what is the emergency that Article 70(7) contemplates is the question we need to pause to ponder.
The answer is that it can be any sort that requires Parliament to deal with. Two key issues are before the Country today which only Parliament is equipped to respond to. They are (1) to enact provisions enabling the Elections Commission to postpone the election in the entire Country and (2) to amend Article 70(5) to provide for the new Parliament to have its first meeting after such period of time from the time of dissolution of Parliament as is necessary to get over the current pandemic situation enabling the conduct of free and fair elections.
These provisions, in view of the fact that it is an emergency Parliament need to be transitional in that they answer the emergency only.
Now that the Election has been postponed beyond June 2nd, while no provision is available to shift the date for the new Parliament to have its first meeting. The only available option in the current impasse is to summon the dissolved Parliament under Article 70(7) and enact the necessary legislation to overcome all constitutional and other legal issues.