President is not bound to reconvene Parliament - Manohara De Silva PC | Sunday Observer

President is not bound to reconvene Parliament - Manohara De Silva PC

3 May, 2020

In the wake of the Election Commission announcing June 20, as the new date to hold the General Election, seven party leaders of the Opposition, including the leader of United National Party Ranil Wickremesinghe and leader of the Tamil National Alliance, Rajavarothiam Sampanthan issued a joint statement last week, urging President Gotabaya Rajapaksa to reconvene Parliament under the circumstances that have arisen.

The joint statement claimed that “Getting appropriate and new legislation passed in order to meet the public health crisis and obtaining parliamentary sanction for the utilization of monies from the Consolidated Fund” as some of the important and urgent businesses after reconvening Parliament. In an interview with the Sunday Observer, President’s Counsel Manohara De Silva debunked all these claims and stressed that there is no constitutional crisis due to the postponement of the General Election. Following are excerpts of the interview:

Q: There is a popular notion that since the election cannot be held and the new Parliament convened within 3 months, the President's proclamation of dissolving the old Parliament is now void. Is this true?

A: That is absolutely false. I will explain why.

The President may by Proclamation, summon, prorogue and dissolve Parliament under section 70 (1) of the Constitution. Also according to section 70 (5) of the Constitution, the President can do three things, that is, dissolve Parliament, nominate a date for the election and nominate a date to summon the new Parliament. Therefore, the requirement is to nominate a date.

All clauses in section 70 (5), required the President to nominate a date for the ‘new’ Parliament. That is on the assumption that the election will be held on the date nominated. Otherwise, you cannot summon a new Parliament.

But the point is when the President issued the proclamation of dissolving Parliament, no one opposed it. No one said anything about its validity until the Election Commission shifted the date of the election to June 20. So the argument is that a third party cannot invalidate an action of the President exercised in compliance with section 70 (5) of the Constitution. Only Parliament can pass a law in retrospect and make the proclamation illegal. And that is what these people (the opposition parties) want. They want to assemble and then nullify the President’s proclamation with a simple majority. They want to make this government uncomfortable and then somehow come into power.

Q: The joint statement presented by Opposition party leaders urged the importance of reconvening the dissolved Parliament. What urgent business can be sorted out in doing so?

A: First, I must say there is no legal provision for any political party leader to request the President to reconvene Parliament. Article 70 (7) says “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”.

Also, I believe the President does not have a moral right to summon the old Parliament. He has a public mandate to form a new Parliament expelling the corrupted politicians. The old Parliament was responsible for the Bond scam, and they (Members of the Parliament) are the very people who brought a resolution against Sri Lanka and said our soldiers were involved in war crimes. They (Opposition political parties) can ask, but the President is not obliged to summon the dissolved Parliament.

Q: Parliament is vested with the powers of state finance. Also, there is a discussion of passing new laws to fight the Covid-19. Your comment.

A: When we consider about the finance, under section 150 (3) in the Constitution, the President can utilize money from the Consolidated Fund for public services in an event the Parliament is dissolved. Hence there’s no issue with regard to finance. Even during this Covid-19 situation, there are sufficient laws including the Quarantine law to take necessary actions. Under the Quarantine law, the Government can restrict the movement of people and take all measures to prevent the spread of the virus. Also under the same law, the Minister of Health can publish a gazette and promulgate necessary regulations.

Q: Is there any power vested in the former Speaker to reconvene Parliament?

A: No, the Speaker does not have power to reconvene a dissolved Parliament. In fact, the Speaker does not have any constitutional power to dissolve, prorogue or reconvene the (dissolved or prorogued) Parliament. Also under section 64 (2) of the Constitution, the Speaker loses his position and powers as soon as Parliament is dissolved. In that sense, there is no Speaker in the country right now. Even if the ‘Speaker’ had such power, a ‘former Speaker’ cannot exercise any power. But the former Speaker can attend to the Constitutional Council as it must be continued till a new Constitutional Council is appointed by the new Parliament.

Q: The Election Commission has scheduled the General Election for June 20. Is this in conformity with the existing law?

A: The Election Commission can postpone the election under the provision of section 24 (3) of Parliament Election Law No 1 of 1981, as there is no provision in the Constitution to postpone an election. But if there is an emergency in the country such as Covid-19 and if it is a satisfying reason for the Election Commission to postpone the election, they can do so. That is what the Election Commission has done.

At the time of postponing, the Commission is bound to declare a future date to hold the election. That is why they declared June 20 as the new date for the General Election. But the Commission is not bound to determine this date under any time limit. The Commission can name a date after 3 months, 6 months or even after a year.

Q: What would happen if the Election Commission again decides not to hold the Election on June 20?

A: The Election Commission cannot postpone the Election arbitrarily. Under section 113 of Parliamentary Election law, if the Commission failed to hold the election on the declared date, the President can decide a new date to hold the General Election.