08 May 2020

Sovereignty cannot reside in a dead Parliament

Political theorist John Dunn, drawing from John Lock’s ‘Two Treatises of Government,’ points out that  ‘it is impossible to foresee and so by laws provide for all accidents and necessities that may concern the public.’ Therefore, he argues, ‘there is a latitude left for the Executive Power to do many things of choice which the laws do not prescribe.’

Someone who calls him/herself ‘a patriot’ has elaborated on this idea with respect to the so-called ‘constitutional crisis’ regarding dissolution of parliament, calls for reconvening parliament and the holding of elections (see ‘Time for constitutional exceptionalism?’ in the Daily FT of April 24, 2020).

Now there are petitions pleading court to determine that the holding of parliamentary elections on June 20, 2020 is illegal. Petitioners as well as political commentators have argued inter alia for the 8th Parliament to be recalled, essentially pleading that the President withdraws the gazette notification announcing its dissolution.

The basic argument is drawn from Article 70(5) of the Constitution which provides a mandatory time limit for a new parliament to meet: three months from the date of dissolution. Now this is obviously not possible because the Elections Commission has set a date that falls after the said three months expire.

Interestingly, these constitution-fixated petitioners have found nothing wrong in citing the Covid-19 pandemic in their plea. Constitutions don’t provide caveats for exceptional and clearly unpredictable circumstances such as pandemics. Nevertheless, they lament (see for example the petition submitted by the Centre for Policy Alternatives) that the President dissolved Parliament ‘despite the fact that Covid-19 was spreading across the world, and Sri Lanka too was taking steps to combat it.’  They know now (if they did not know then) that the one irrefutable truth of the circumstances created by Covid-19 is that we did not know yesterday what we know today (and obviously, what we know today may very well be falsified by what we know tomorrow). 

The danger of over-citing Covid-19 is embedded precisely in the ignorance that marks the pandemic. If, for argument’s sake, the pandemic is cited to un-dissolve Parliament, it could also be used to call for the indefinite postponement of elections. What would these petitioners have done, for example, had the 8th Parliament been sworn in sometime in February 2015, following elections in January the same year. Had the Elections Commission decided to hold elections in May 2020, could these petitioners plead that court determine such an election unconstitutional (on account of the inevitable violation of Article 70(5)? What would that do to Parliament? Would it force us to live with a Parliament that has expired? Ridiculous, isn’t it?

Covid-19, then, is a phenomenon of the kind that calls for exceptionalism, precisely because the conditions created were impossible to foresee and as such could not have informed law makers when drafting and passing legislation. This is where the exceptionalism caveat becomes relevant, i.e. the executive power can use the latitude to take such action deemed necessary but which the laws may not prescribe.  It is the public good that must drive pragmatism.

Now ‘exceptions,’ in general naturally carry all the dangers associated with precedents. Pragmatism and necessity are value-laden. Who decides ‘public good,’ one might ask. On the other hand, even the petitioners allude to ‘exceptional circumstances,’ i.e. the pandemic.

The CPA, playing virologist, epidemiologist and elections commission, makes an interesting claim.

‘The Petitioners have observed that it is impossible to hold a free and fair election in the context of the Covid-19 crisis. The health risk would seriously impede campaigning efforts and voter turn outs, which are essential for a free and fair election. Further, it would be difficult for election officers and voters to maintain social distancing during the election and the preparation for the same, which would increase the risk of the spread of the virus. As such there is a likelihood that elections could be further postponed beyond the 20th June.’

The Elections Commission has not whined about the matter. Sure, the modalities would of course be radically different from what we’ve come to expect, but these are unusual circumstances. Adjustments can be made with relevant input about adequate protectionist regimes for candidate and voter.

The CPA then waxes eloquent about sovereignty. Good. They are upset about the lack of a functioning Parliament ‘for more than three months.’ This, they say, ‘undermines sovereignty of the people and the rule of law.’  Good and strange. What is the alternative?

The claim is as follows: ‘If the 2nd March 2020 dissolution is permitted to stand, this would have required the new Parliament to meet for the first time by the 2nd June 2020. Thus, a decision to hold the election on the 20th of June 2020 is unconstitutional, and a violation of their fundamental rights.’

Is the call, then for elections to be held early enough for the 9th Parliament to be convened before July 2, 2020? What of the Covid-19 issue alluded to in the preamble, then? If, as indirectly suggested, the dissolution is not allowed to stand, does it not also shoot down provisions in the Constitution for the President to dissolve Parliament?

As for sovereignty affirmed, as implied, by Parliament, why is the question of representation not mentioned? The 8th Parliament stands dissolved. The composition of the 8th Parliament is clearly at odds with public sentiment expressed first in the local government elections of February 10, 2019 and overwhelmingly affirmed in the Presidential Election of November 2020. How can a a Parliament that has no legal standing after its dissolution and has lost legitimacy moreover as argued above, be a repository of sovereignty?

In a context where provincial councils are non-functional and Parliament stands dissolved the only legitimate representation we have with any kind of power is the President. Whether we like it or not, for better or worse, the one clear repository of sovereignty is in fact the office of the President. Our laws were not made envisioning anything like Covid-19. We are not in an ideal situation because circumstances have trumped constitutional provision. That Gordian knot has to be cut. The instrument is Constitutional Exceptionalism. The hand is that of the Executive Power. All other options suggested would deliver such authority at least in part to an illegitimate and illegal body, the 8th Parliament. That has to be the worse of the two option.

This article was first published in the DAILY MIRROR [May 8, 2020]

Gota, Parliament and the Question of Representation