Chanaka Bandarage

There is an argument being made that in accordance with Article 150 (3) of the Constitution the President has power to appropriate funds from the Consolidated Fund only until 20 April 2020; hence, the dissolved Parliament should be reconvened. This argument is wrong.

The writer states that in accordance with Article 150 (3), the President has power to raise such funds on his own accord, at least 14 -21 days after 20 September 2020 (which is 3 months+ from the date of the election on 20 June 2020 – the current scheduled date).

The 14 -21 days apply because the date of summoning the new Parliament happens after the lapse of such a number of days from the date of the election.

See especially the bold in Article 150 (3), both English and Sinhala versions below:

150(3)- Where the President dissolves Parliament before the Appropriation 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 he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.’

150(3)- කිසියම් වර්ෂයක විසර්ජන පනත් කෙටුම්පත නිතිය බවට පත්වීමට පෙර ජනාධිපතිවරයා විසින් පාර්ලිමේන්තුව විසිරුවා හරිනු ලැබූ අවස්ථාවක පාර්ලිමේන්තුව විසින් රජයේ සේවාවන් සඳහා මුදල් වෙන් කර නොමැත්තේ නම් අභිනව පාර්ලිමේන්තුව රැස්වීමට නියමිත දින සිට මාස 3ක් ඉකුත් වන තෙක් රජයේ සේවාවන් සඳහා යම්කිසි මුදලක් අවශ්‍ය වෙතැයි ජනාධිපතිවරයා සලකයි නම් එම මුදල ඒකාබද්ධ අරමුදලෙන් නිකුත් කිරීමටත් වැය කිරීමටත් නියම කිරීමට ජනාධිපතිවරයාට බලය ඇත්තේය.”

Currently, the Opposition’s argument that the President’s financial power under Article 150 (3) ends on 20 April 2020 has merit.  This is because the Government has failed to set a date for the new Parliament to meet after the election. The Election Commission has set a date for the election (20 June 2020), but Article 150 (3) refers to the first date which the new Parliament meets. This has to be set by the President.

This is a major drawback on the part of the Government!

Thus, at the moment the 2 March 2020 gazette notification seems to be ineffective. Technically, the Opposition’s Petition should succeed.

Thus, what the Government must do is to immediately gazette such a first Parliament meeting date.

If they are slack, the Government will have to pay a huge price.

The Writer in his article dated 26 April 2020 (published in Lankaweb) stated that the proposed Petition before the Court is doomed to fail.  He standby his assertion.

Those who demand reconvening of the Parliament seeks a declaration from the Court that the President’s gazette notification dated 2 March 2020 issued under Article 70 (1) should be declared null and void. They have failed to substantiate their argument sufficiently and adequately. Their current argument that the election date mentioned in the gazette – 25 April 2020, and sitting date of the new parliament – 14 May 2020 are unachievable is a weak one.  The defective date for holding the election has already been cured by the Election Commission by proclaiming a new election date of  20 June 2020. The Government should soon gazette the first date that the new Parliament meets.

The only way to mount a proper challenge that the Parliament must be immediately reconvened is to allege that given the dangerous Corona Pandemic, the President has failed to exercise his discretion in relation to Articles 70 (1) and 70 (7) in good faith.  But, the Opposition’s proposed Petition does not raise this.

Article 70 (1) – The President may by Proclamation, summon, prorogue and dissolve Parliament.

Article 70 (7) – 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 mayby 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.

Note mayin both Articles. That suggests the President’s power is discretionary (not mandatory). 

The exercise of a discretionary power is subject to judicial challenge.

The following are grounds of review that could be relied upon (they are set out herein only for academic purpose):

                     (a)  taking an irrelevant consideration into account in the exercising of the discretionary power (showed the desire to dissolve the Parliament early and hold early elections disregarding the danger of Corona Pandemic (breach of Article 70 (1);

                     (b)  failing to take relevant considerations into account in the exercise of the discretionary  power (the dangerous Corona Pandemic has created an Emergency situation in the country, and during the Corona Pandemic the government is ought to be present in the Parliament to answer to the people (breach of Article 70 (7).  Refuses to reconvene the dissolved Parliament (breach of Article 70 (7));

                     (c)  exercise of the discretionary power for a purpose other than a purpose for which the power is conferred (dissolved the Parliament disregarding the Corona Pandemic and set down a date for early elections with the view of securing an absolute parliamentary majority (breach of Article 70 (1). Refuses to reconvene the dissolved Parliament (breach of Article 70 (7));

                     (d)  exercise of a discretionary power in bad faith (dissolved the Parliament and set down a date for holding elections during a deadly Corona Pandemic that is likely to expose the public to unnecessary risk including death (breach of Article 70 (1). Refuses to reconvene the dissolved Parliament (breach of Article 70 (7));

                     (e)  exercise of the discretionary power in accordance with a rule or policy without regard to the merits of the particular case (dissolved the Parliament disregarding the importance of upholding ‘representative democracy’ – the Government is answerable to people through the Parliament during an Emergency (breach of Articles 70 (1) and 70 (7). Refuses to reconvene the dissolved Parliament (breach of Article 70 (7));

                     (g)  exercise of the discretionary power that is so unreasonable that no reasonable President could have so exercised the power (the Government is committed to explain to the public through the Parliament about distribution of food/how essential services would operate during the curfew, social distancing measures/conduct of PCR tests, receipt and disbursement of very large foreign/local aid/funds etc (breach of Article 70 (7).  Refuses to reconvene the dissolved Parliament (breach of Article 70 (7));

                     (h)  exercise of the discretionary power in a way that constitutes abuse of the power (breach of Articles 70 (1) and 70 (7)).