Parliamentary Elections 2020: A  Point Of View

By Savitri Goonesekere –APRIL 30, 2020

Prof. Savitri Goonesekere

The coronavirus pandemic has impacted the lives of people in Sri Lanka and across the globe. The President and the Minister of Health have given leadership in responding to this grave public health crisis. Their policy and programming initiatives have been supported by dedicated medical professionals and health workers in the public health system, giving other citizens with different health problems the opportunity to access private hospitals. Sri Lanka also initiated from the middle of March, an intensive programme of identifying Covid 19 cases, contact tracing, and isolation, considered the best response in dealing with this pandemic. Testing has been added as a major initiative in recent weeks, again following protocols considered vital in preventing the spread of the disease. This is an impressive record of performance. It is a credit to our public health system, and the political leadership given in coordinating a response to the pandemic, with medical professionals and the public health system.

However unfortunately, pressure has been building in recent weeks, to “open up” the country. This is largely related to the concern with holding the Parliamentary elections on a postponed date of  20th June 2020.

Parliamentary Elections 2020: the Sequence of Events

The original date for Parliamentary elections was 25th April 2020, the date set by the President’s Proclamation (issued by Gazette Notice of 2nd March 2020), dissolving Parliament. Section 10 (1) (b) of the Elections Act (1981) places the responsibility on the President to set the “date on which the poll is taken” in every Proclamation dissolving Parliament. This provision restates the President’s responsibility under Article 70 (5) (a) and (b) of the Constitution, to set a date for the Parliamentary election, which also must not be later than three months after the dissolution of Parliament. This is because the new Parliament must meet not later than three months after the dissolution of the former Parliament. The details of these Constitutional provisions will be discussed later.

Section 24 (1) (c) of the Elections Act indicates that when the Election Commission publishes a Gazette Notice specifying the date of the poll for the Parliamentary election, it must “specify the date of the poll being the date specified (by the President) under Section 10,” i.e. Section 10 (1) (b).  According to these provisions it is the President’s act of setting the date of the Parliamentary election by his Proclamation dissolving Parliament that enables the Commission to start making arrangements to conduct the poll. The Commission’s responsibility in this regard arises only after the President has set the date under Section 10 (1) (b).  The President’s Proclamation dissolving Parliament, and the date set by him for the poll for Parliamentary elections are both clearly connected.

The Government introduced curfews and lock downs in mid March in response to the Covid-19 pandemic. When it appeared that elections could not be held on 25th April, (the date set by the President in his Proclamation), the Election Commission surprisingly issued a Gazette Notice on 21st March 2020 stating that the poll could not be held on that date, and also that they would set a later date for the poll. This Gazette Notice of the Commission was in conflict with Section 10 (1) (b) and Section 24 (1) (c) of the Election Act referred to in the earlier paragraph.  The Election Commission was therefore acting outside the powers given to them by the Elections Act in stating that it would set a later date for the poll. The Gazette notice was also in conflict with the President’s responsibilities under the Constitution as outlined in Article 70(5) (a) and (b) cited above. 

However, the Commission subsequently wrote to the President on 31st March 2020, seeking clarification on the date of the poll for the Parliamentary election. It had become clear that the poll could not be held on the 25th April 2020, and therefore that the new Parliament would not be able to meet on the 14th May 2020, within the three month period specified by Articles 70 (5) (a) and (b) of the Constitution, and in the Presidential Proclamation.

The Secretary to the President replied to this letter, stating that the responsibility for setting a new date was with the Elections Commission, and NOT the President. The letter referred to the Commission’s responsibility to do so under Section 24 (3) of the Elections Act. It appears that it was in response to this letter from the Secretary to the President, that the Commission set the new date of the poll as 20 June 2020 by Gazette Notification No. 2172/3 of 20th April 2020. This Gazette Notification refers to Section 24(3) of the Elections Act, apparently accepting the interpretation of their powers given in the letter of the Secretary to the President.

 It is useful in these circumstances to examine the provisions in the Constitution 1978 and the Elections Act 1981 that deal with this matter.

Elections Act 1981 and the Postponement of a Parliamentary Election

Despite the provisions referred to above on keeping to the date stated in the President’s Proclamation dissolving Parliament, there are provisions in the  Elections Act which relate to postponing a poll in the event of any emergency.  Section 24 (3) referred to in the Commission’s Gazette Notification of 20th April 2020, justifying the setting of a new date for the Parliamentary elections, says this: “where due to any emergency or unforeseen circumstances” the poll for the election in any ELECTORAL DISTRICT cannot be taken on the date specified in the Commission’s Gazette Notification (and conforming with the President’s Proclamation), the Commission may by Gazette notification “appoint another day for the taking of SUCH POLL” (i.e poll for THAT electoral district).   Section 24 (3) clearly covers a case where the Commission cannot hold the poll on the date specified in the President’s proclamation due to an emergency, such as a natural disaster or a breakdown of law and order, in an identified electoral district.  This will be a special measure taken in respect of that district, in a situation where polls can be held in other districts on the specified date.  This provision on a postponement of a poll in a particular ELECTORAL DISTRICT is connected to a general provision in Section 113 of the Act.  

According to this Section 113, after the President has fixed the date of an election on dissolution of Parliament, he has a special power to order an election on another date by Gazette Notification “in any electoral district where owing to any cause no election has been held in pursuance of his order.”  Section 113 refers again only to the change of a date in a particular electoral district.   The section envisages that this is done in circumstances where the elections are held in other districts in conformity with his Proclamation dissolving Parliament.

Both these provisions (Section 24 (3) and Section 113), clearly contemplate a change in the polling date in a particular electoral district because of an emergency or unforeseen circumstances. The phrase “electoral district” cannot be  interpreted as a reference to postponement of the entire  poll in a  Parliamentary election  after dissolution of Parliament.  Neither Section contemplates a situation where the polls for a Parliamentary election are held in all districts in the country at different times. Staggering elections in that way is not contemplated by the language of Section 24 (3) and Section 113 of the Elections Act.

Consequently:

1. The date for a Parliamentary election after dissolution has to be the date set in the President’s Proclamation.  It cannot be later than three months of the date of dissolution, as the new Parliament must be summoned by the President within three months of dissolution (Constitution Article 70 (5) (a) and (b) and Section 10 (1) (b) of the Elections Act). The Constitution and the Elections Act reinforce each other and cannot be delinked.

2. The Election Commission has no power under Section 24 (3) of the Elections Act to set the date of a Parliamentary election after the dissolution of Parliament.  

3. Section 24(3) and Section 113 of the Elections Act on the postponement of an election in a particular electoral district in an emergency or unforeseen circumstances, do not cover the postponement of a Parliamentary election.

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