ADDRESSING A NATIONAL CRISIS
Given below is the Gazette notification dissolving Parliament, the dates for nominations, the date on which Elections to Parliament are to be held and the date on which the new Parliament is to be summoned.
“The Gazette of the Democratic Socialist Republic of Sri Lanka
PART I: SECTION (I) — GENERAL
A PROCLAMATION BY HIS EXCELLENCY THE PRESIDENT OF THE DEMOCRATIC SOCIALISTREPUBLIC OF SRI LANKA GOTABAYA RAJAPAKSA.
My No. PS/CSA/00/1/2/3
KNOW YE that by virtue of the powers vested in me by Article 70 of the Constitution of the Democratic Socialist Republic of Sri Lanka to be read with Sub-paragraph (c) of Paragraph (2) of Article 33 of the Constitution of the Democratic Socialist Republic of Sri Lanka and in pursuance of the Provisions of Section 10 of the Parliamentary Elections Act, No. 1 of 1981, I, Gotabaya Rajapaksa, President of the Democratic Socialist Republic of Sri Lanka, do by this Proclamation -(a) Dissolve Parliament, with effect from midnight today and summon the new Parliament to meet on the Fourteenth day of May, Two Thousand and Twenty ;(b) Fix Twenty Fifth day of April, Two Thousand and Twenty as the date for the election of Members of Parliament ;(c) Specify the period beginning on the Twelfth day of March, Two Thousand and Twenty and ending at Twelve Noon of the Nineteenth day of March, Two Thousand and Twenty as the nomination period, during which nomination papers shall be received by the Returning Officers ; and
(d) Specify each place mentioned in Column II of the Schedule hereto as the place of nomination for candidates seeking election in the electoral district mentioned in the corresponding entry in Column I of that Schedule. Given at Colombo on this 02nd day of March, in the year Two Thousand and Twenty. By Order of His Excellency.”
In keeping with the above Gazette, Parliament was dissolved March 2, 2020; Nominations for elections were from March 12 to 19 2020; Elections are to be held on April 25, 2020 and Parliament is to be summoned on May 14, 2020.
IMPACT of COVID - 19 on ELECTIONS
The first COVID-19 infected case of a female Chinese tourist in Sri Lanka was reported on January 27, 2020. The next case reported on March 11 was that of a Sri Lankan tour guide, who had provided services to a group of Italian tourists. As the number of cases started to increase the Government decided to impose an island-wide curfew on March 20.
What is relevant from these developments is that by the time the second case of a person was reported on March 11, Parliament was dissolved (March 2) and as the numbers affected kept on increasing the Executive branch of the Government under the President, was left with the task of dealing with the daunting task of containing a global contagion, the likes which the world had never experienced.
In this background, for the Opposition to demand postponement of elections as Gazetted by the President for April 25, means the Opposition is not aware of the Parliament Elections Act (No. 1 of 1981) – Sect 24 (2).
Sect 24 (2) states: “Where due to any emergency it is necessary that the situation in any polling station should be different from that specified in a notice published under subsection (1) the Commissioner may cause the situation of that station to be altered in such manner as he may, in his absolute discretion, determine” and
(3) States: “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”.
It is therefore absolutely clear that ONLY the Elections Commissioner has the “absolute discretion” to postpone a poll in view of the current “unforeseen circumstances”.
ACCESS to FUNDS
The Constitutional provision as to how a Government meets its financial obligations when Parliament is dissolved is provided in Article 150 (3).
Article 150 (3) states: “Where the President dissolves Parliament before the Appropriations 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 may be considered necessary for the public service until the expiry of a period of three months from the date on which the new Parliament is summoned to meet”.
Assume that the “Vote on Account” passed by Parliament on December 21 2019 by Resolution in “terms of paragraph (2) of Article 150 of the Constitution is the “provision” referred to in Article 150 (3) to cover public services for the period January 1, 2020 to April 30, 2020. When the Vote on Account was passed there was no indication whatsoever of the extent of the challenges that Sri Lanka would have to face as a result of COVID-19, which today has been declared by the World Health organization as a global pandemic. Therefore, when the Vote on Account was passed in December 2019, one could justifiably conclude that the funds provided in the Vote on Account was to cover public services under normal circumstances and not anything like the unprecedented challenges that Sri Lanka is currently facing.
Although the first case identified with COVID-19 in Sri Lanka was in late January, the fact that by then the virus had become a global issue, means Parliament had ample time to revise its Vote on Account to cover the national efforts needed to overcome the extraordinary threats that Sri Lanka is now facing and would have to face for years to come. The fact that Parliament did not reflects their lack of concern for issues relating to national security. Under the circumstances, the paucity of funds provided in the Vote on Account in December 2019 should NOT be treated as a “provision” being made by Parliament per Article 150 (3).
This gives the President the authority to draw from the Consolidated Fund to meet not only the exigencies to contain and overcome the effects of COVID-19 but also its ripple effects on the economy, and the well-being of the Peoples of Sri Lanka for perhaps years to come.
Also, the crisis has reached such proportions that it has become a threat to National Security. Under such circumstances, the President as the Head of the Executive should be the only organ of Government that should be authorized to use his “absolute discretion” to address this crisis. Therefore, it is imperative that the President should have access to funds from the Consolidated Fund as provided for in Article 150 (3) of the Constitution.
The call by the Opposition to postpone the Elections and for Parliament to be recalled to address the current national crisis would only muddy the waters because it would involve too many busybodies with parochial interests. Had they the national interest in mind, all of them collectively had ample time to revise the Vote on Account passed in December 2019. Since no one is in a position to project the scale and scope of what is at stake at this time, it is best that the crisis is handled by a SINGLE authority with access to the needed resources.
As to the issue of when to hold the Election, it should be left to the “absolute discretion” of the Election Commissioner under provisions of Section 24 of the Parliament Elections Act (No. 1 of 1981), and the latter should be left to the “absolute discretion” of the President as the Head of the Executive supported by funds from the Consolidated Funds in view of the scale and scope of the extraordinary crisis to Sri Lanka’s National Security by way of threats to the economy and access to food. The National Crisis Sri Lanka is facing is unprecedented because it cannot isolate itself from what is occurring globally. Therefore, it is imperative that addressing the crisis should be left to the “absolute discretion” of the President as the Head of the State and the Commander-in-Chief of the Armed Forces, together with support from the nation as a whole if Sri Lanka is to emerge from this National Crisis.