If the insatiable desire of the Opposition to be destructive and uncooperative at this time of crisis cannot be contained, the President too probably has some cards up his sleeve that he could play, though he really doesn’t need to play them.
The Opposition, unable to offer any constructive assistance in this time of crisis, has chosen to rely on the fiction that the dissolved Parliament has to be reconvened. It’s a total, unadulterated legal fiction — legal bilge, really.
Article 70 (5) of the Constitution requires the President to summon the new Parliament within three months of dissolution of the old one. The Article says nothing about reconvening the old Parliament in the event elections cannot be held due to any intervening contingency. Of course there is a separate article that gives the President discretionary power to reconvene the dissolved Parliament in the event of an emergency.
But, the Opposition and its hurrah squad, especially some persons who flaunt legal luminary credentials, are harping on the wording the President shall summon (the new parliament) within three months of a proclamation of dissolution. The inference is that the proclamation for dissolution lapses if elections are not held within three months’ time.
The fact that elections cannot be held in the current conjuncture due to an unforeseen situation is completely ignored. Having considered all of the above suppositions, they postulate that any election held other than on the proclaimed date, and after three months of the proclamation would be illegal.
EMERGENCY
There is one thing the President can probably do even in the face of such legal hair-splitting. Just to be doubly conscientious, he could, just before the stipulated three months lapses after the March 2 proclamation, annul the original proclamation and issue a fresh one dissolving Parliament and setting a fresh date for elections. He could do so, not because it’s necessary, but merely for the heck of it.
As far as it is constitutionally reconcilable, Parliament was dissolved on March 2, 2020. But due to an exigency, not an emergency, the rest of the proclamation concerning the holding of elections within three months could not be followed through. There is no argument anywhere about that. Elections cannot and could not be held due to a valid reason.
The Independent Elections Commission decided that there is no possibility of holding the polls in the midst of the Covid-19 pandemic, period.
The so called legal luminaries insist — to reiterate for added clarity — that if the election is not held on the date that was set in the presidential proclamation, the President needs to reconvene the old Parliament because the proclamation of March 3 is rendered invalid.
The inference is that Parliament considers itself in session, or to use the inelegant term, undissolved. Well, if the legal interpretations of the dissenters are going to be so shoddy in the first place, the President might as well reply to such farcicality, with a nonchalant response of his own. He could dissolve the Parliament once more by proclamation, and in the same breath declare that his earlier proclamation was annulled.
Of course he really doesn’t have to do any such thing. It’s clear in the Constitution that it’s the new Parliament that has to be convened within three months of a proclamation of dissolution.
There is no mention of the dissolved parliament except in the case of an emergency. So the talk about any lapsing of the Presidential proclamation on account of not re-summoning Parliament is nonsense.
The proclaimed date on which the election was to be held however was not tenable due to intervening circumstances, namely the pandemic.
The election’s postponement was not the President’s doing, and the other laws took over from there regarding a fresh date. To say that any new election without a fresh proclamation by the President is illegal as the proclamation lapses with elections not being held on the specified date, is preposterous.
If elections are held on a subsequent date determined by the Elections Commission, is such a poll to be annulled by any institution? That would be the most vicious affront to the sovereignty of the people.
But that’s the blasé attitude of our so-called legal luminaries. Do they care that an election is sacrosanct, and the people’s will is supreme? How dare anybody suggest that a government chosen by the people in a free and fair election, subsequently becomes illegal, because of a supposed technical reading of a constitutional clause?
CARPING
These blithe legal arguments should therefore be dismissed with the contempt they deserve. Nobody doubts that there is a reasonable cause for the postponement of elections, and nobody doubts that it’s reasonable to expect an election to be held on a later date, though not too far into the future.
So what’s the problem? Is it the constitutional technicality that the election could not be held on the date given in the proclamation? Well, yes it could not be, but the intent of the proclamation was to dissolve Parliament and hold elections.
The President can annul his earlier dissolution and proclaim a fresh dissolution in a new proclamation if he so wishes. It would mean that Parliament stood dissolved, and was technically dissolved again, albeit after a technical ‘reconvening’.
An Opposition that’s carping about a lapsing proclamation and a possibly illegal election deserves a rude awakening with regard to these facts. This columnist and others have written at length about the undesirability of the dissolved Parliament and its illegitimacy after its majority parties were defeated at the Presidential elections, and thereby lost their mandate. There is no need to repeat such verities here.
However, Sumanthiran is repeating the tired old argument that the Covid 19 epidemic calls for new laws to confront it. There is no need for new laws, but there is a need for efficient execution of policy. But even in the event laws were needed, is it a discredited and illegitimate Parliament that’s supposed to pass them?
No, it should be a new Parliament that would be elected eventually that will pass new Covid-19 related laws — and there isn’t a shadow of doubt about that fact.
The more Sumanthiran adduces breathtakingly untenable but self-serving arguments of this sort, the more he sounds like the shyster he inevitably is.
PREVAILED ON
The Opposition’s legalese has already cost the country dearly. The then government’s and its backers’ campaign to keep the UNP in power in 2018 prevailed due to a judgement of the Supreme Court.
One could ask, at what cost? The Supreme Court decided on one interpretation of the Constitution when there were others as well, but that’s a subject for another day. Whatever the Supreme Court did on that occasion was clearly its judicial prerogative.
But those who carried out that campaign prevailed on the strength of legalese despite the fact that the people’s choice as their rulers at that point in time was obviously not the government then in power. It was the government that was subsequently elected by the people that the people obviously preferred. That legal campaign to keep the UNP in place had its costs, and they were tremendous.
The Easter Sunday attacks would arguably have been prevented had the then government been sent home and not retained on the basis of ‘legalese.’
On this occasion there isn’t a shred of legitimacy for the Opposition to overturn the people’s will and attempt to rule through an illegitimate Parliament. The people’s will would be repudiated if each time their preference as to who governs is overridden by some other branch of government that’s not the elected branch.
Laws are subject to interpretation and there can be several ways a judicial interpretation can eventually be manifest. But the people are sovereign on the other hand, and their choice of government — the mandate — is sacrosanct.
Those such as Jayampathy Wickremaratne who made an abject mess of the Constitution and are among the core group to be held responsible for debacles such as the Easter Sunday massacre — considering issues of causality — are now, over the sorry debris of a constitutional amendment they left behind, talking about the doctrine of necessity. There is no need for it. The legal fiction of reconvening a disgraceful parliament past its sell-by-date, is ridiculous, period.
Other unknown antsy worry warts are bloviating about Covid-19 being a ‘catastrophe of seismic proportions’ for the country. What catastrophe? Seismic where? Yeah right, and a nice try. Any hyped nonsense, so they could hang their hat on it, and bring their no-goods and worthless comprador nincompoops into power again!