෦ ෧ ෨ ෩ ෪ ෫ ෬ ෭ ෮ ෯
සිංහල ලිත් ඉලක්කම්
0 1 2 3 4 5 6 7 8 9
Summoning the new
Parliament
The following is a brief summary of some
of the articles published in www1.kalaya.org., translated into English, for the
benefit of those who understand the language of the majority in England, but
not that of the majority in Sri Lanka.
Only the President
is empowered to summon, prorogue or dissolve the Parliament under section
(constitution) 33(2) (c ) of the Constitution. It is not his duty to conduct elections,
and his duty in this connection is stated under 33(1) (d).
“33. (1) It shall
be the duty of the President to -
(d) on the advice of the
Election Commission, ensure the creation of proper conditions for the conduct
of free and fair elections and referenda.
(2) In addition to the powers,
duties and functions expressly conferred or imposed on, or assigned to the President
by the Constitution or other written law, the President shall have the power -
(a) to make the Statement of
Government Policy in Parliament at the commencement of each session of
Parliament;
(b) to preside at ceremonial
sittings of Parliament;
(c) to summon, prorogue and
dissolve Parliament;”
The above are stated under the powers and duties of the
President (The Executive, President of the Republic) and they are further articulated
under The Legislature Procedure and Power, in the Constitution.
In this connection the following sections are relevant.
“70. (1) The President may by
Proclamation, summon, prorogue and dissolve Parliament:
(2) Parliament shall be summoned
to meet once at least in every year.
(3) A Proclamation proroguing
Parliament shall fix a date for the next session, not being more than two
months after the date of the Proclamation :
Provided that at any time while
Parliament stands prorogued the President may by Proclamation –
(i) summon Parliament for an
earlier date, not being less than three days from the date of such
Proclamation, or
(ii) subject to the provisions
of this Article, dissolve Parliament.
(5) (a) A 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.
(b) Upon the dissolution of
Parliament by virtue of the provisions of paragraph (2) of Article 62, the
President shall forthwith by Proclamation 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.
(c) The date fixed for the first
meeting of Parliament by a Proclamation under sub-paragraph (a) or
sub-paragraph (b) may be varied by a subsequent Proclamation, provided that the
date so fixed by the subsequent Proclamation shall be a date not later than
three months after the date of the original Proclamation.
(6) Where the poll for the
election of the President is to be taken on a date which falls between the date
of dissolution of Parliament and the date before which Parliament is required
by paragraph (5) of this Article to be summoned to meet, Parliament shall,
notwithstanding anything in that paragraph, be summoned to meet on a date not
later than four months after the date of dissolution of Parliament.
(7) If at any time after the dissolution of Parliament, the
President is satisfied that an emergency has arisen of such a nature that an
earlier 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 shall stand dissolved
upon the termination of the emergency or the conclusion of the General
Election, whichever is earlier.”
Section 70(1) describes the means by which the President may
summon, prorogue or dissolve the Parliament. That is by a proclamation.
Section 70(2) states that the Parliament shall be summoned to meet once
at least in every year. It is not clear as to what the year is. Is it a year
starting on the 1st of January, or a Sinhala Avurudda, or a Buddha
Varsha or simply an year of 365(6) days? If it is the latter, the Parliament has to be summoned
at least by 1st March 2021. The President shall summon the
Parliament before that day, if he desires so and if the relevant conditions are
fulfilled. He cannot postpone it to a date later than 1st March
2021. If it is a year starting on 1st
January, the President has time till the 31st of December 2021. If
it is a Buddha Varsha he gets time till May 2021 only.
Sections 70(5), 70(6) and 70(7) are interesting to say the
least.
Section 70(5) is applicable under what I may call normal
conditions. The fact that Sections 70(6) and 70(7) deal with non normal
situations overriding the normal situations amply illustrates that there are
situations where 70(5) is not applicable.
Section 70(6) clearly states that under certain conditions the
Parliament could be summoned to meet within four months of the dissolution of
the Parliament notwithstanding anything in Section 70(5). Thus, Section 70(5) is not sacrosanct.
Section 70(7) deals with another non normal situation. If the
President is satisfied that an emergency has arisen, after the dissolution of
the Parliament he may summon the Parliament that has been dissolved. However, Section
70(7) does not say that the President shall summon the Parliament that has been
dissolved.
Now it is clear that an emergency has arisen after the
Parliament was dissolved in March. The President had by proclamation fixed
dates for the Parliamentary Elections and summoning of the new Parliament. What
is the President expected to do when Covid 19 arrives unannounced? The
Constitution is silent as neither J R Jayawardhane nor A J Wilson had heard of a Covid.
However, the ball was in the court of the Election Commission,
and they said that the elections could not be held on 25th April
(today!). They did not specify a new date. That was a mistake, but they have now corrected
it by announcing the date of elections as 20th June. The Commission
has the power to do so under 24(3) of the Parliamentary Elections Act No1 of
1981.
“24 (3) Where due to any emergency
or unforeseen circumstances the poll for the election in any electoral district
cannot be taken on the day specified in the notice relating to the election
published under subsection (1), the Commissioner may, by Order published in the
Gazette, appoint another day for the taking of such poll, and such other day
shall not be earlier than the fourteenth day after the publication of the Order
in the Gazette.”
The Commission may appoint another
date if Covid 19 decides to stay with us until June. The Commission can
postpone the day of elections, and 24(3) does not stipulate that the elections
have to be held before such and such a date. This is an emergency, and section
70(5) of the constitution has been superseded. Since the constitution is silent
as to date of the election when an emergency arises, the Parliamentary Elections
Act takes over, which enables the Commission to appoint another date for the
elections, without any restrictions with respect to time.
If the commission had not acted by
today, the President himself could have intervened to fix a date for the
elections according to Section 113 of the Election Act.
“113. If at any time after the President has
ordered or fixed the date for an election, it is shown to his satisfaction that
in any electoral district owing to any cause whatsoever no election has been
held in pursuance of such Order be may at any time by notice in the Gazette
issue another Order that an
election shall be held in that district.”
After the elections are held it shall be the duty
of the President to summon the new Parliament as stipulated in Sections 33 (2) (
c ) and 70(1) of the Constitution. And the date? It could be any day before Vesak
2021 if we adhere to Buddha Varsha or Christmas 2021 if we adopt anno Domini.
What about June 2nd? It does not arise as 70(5) has been superseded
in the year of Covid 19. (19 of course refers to 2019). In any event my fourth
form Latin helps me to translate lex non
cogit ad impossibilia. The law
does not compel the impossible.
