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Thursday, 16 April 2020 13:26

The President’s Call: Politics Or Constitution? - Jehan Perera

The government is continuing to take actions to keep the country in lockdown mode with which the general population has been cooperating with even though it is creating economic hardships to wide swathes among them. These include the imposition of a 24 hour curfew that is now into its fourth week in some areas. Despite the hardships there is widespread support for what the government is doing as the fear of COVID infection is also widespread. In the more rural areas most of the houses have kohomba leaves hanging in their doorframes as they are believed to have medicinal properties that will ward off diseases. The security guard across the road recounted that when he goes home he is compelled to first have a bath and put his clothes to be washed before entering it.

However, the prolonged 24 hour non-stop curfew and accompanying lockdown are also becoming more difficult for daily income earning sections of the population to cope with. The pressure will be mounting on the government to bring an end to the curfew which has been at the heart of its COVID mitigation strategy. There is economic pressure coming from both affected individuals and corporates. The government has been able to provide recipients of poor relief via the Samurdhi programme with a financial grant of Rs 10,000. But there are many others who have become equally poor if not poorer on account of their inability to go out and earn their daily incomes. They are not recipients of government aid in any systematic manner.

The pressure on the government is also coming from the corporate sector. Big business companies have slashed the incomes of their employees by significant amounts that vary from 25 to up to 60 percent in some cases. Smaller business companies without reserves and without cash flows have found themselves unable to pay their employees at all, with the employees helpless to raise objection as they are housebound due to the 24 hour curfew. They would want the government to end the lockdown which would enable them to get back to their regular commercial activities. However, economic pressure is not the only reason why the government will wish to bring the regime of 24 hour curfew and lockdown to an end.

Elections Soon
The government has a political motivation to declare a quick victory over the COVID virus. This is on account of its interest in holding general elections without further delay. With each passing week, as the economy weakens, and prices rise, public opinion can shift against the government. Prices are bound to rise steeply in the months ahead as the rupee weakens against the dollar, as it already has, and imports become more costly. The growth rate of the economy is anticipated to be negative with the World Bank predicting a recession for the country of up to 3 percent of GDP in common with other South Asian countries. The downturn in the economy will be largely for reasons outside the control of the government, such as the large scale cancellation of orders from foreign buyers that is severely impacting on Sri Lankan export companies.

The government’s desire to declare early victory over the COVID virus is being contested by those in the medical profession who have been among its supporters in recent times. One of the unexpected conflicts of the present time is the one between the state sector doctors represented in the GMOA who are in the front line of the battle against the COVID virus and the Ministry of Health. The latter, led by the Minister of Health are claiming that the COVID crisis is under control. The minister was reported in the state media to have said that “by April 19 all possible COVID patients in Sri Lanka will appear and the people who had it without any symptoms or with mild symptoms will be completely recovered. All we, Sri Lankans need to do is stay at home without going out until April 19. The country can then be saved from COVID-19…”

The GMOA can hardly be said to be an anti-government group, as its leadership campaigned vigorously on behalf of the president during last year’s presidential election. However, the stance they are now taking in the public interest is contradictory to the political strategy of the government, which appears to be to conduct the general elections as early as possible. Instead of prematurely declaring victory over the COVID virus, the GMOA has been asking for intensified approach to be taken to contain the virus, including more testing and preventing free movement of people across districts. But the dilemma for the government is that the longer delays holding the elections, the worse the economic crisis is likely to get. It will require the global economic situation to improve before the economic situation within the country can improve.

Regularising Actions
There is a further crisis that the government will be heading towards. This is a constitutional crisis due to governing the country without a functioning parliament. The problem here is that the government’s current budget period ends on April 30. If the government is to obtain more funds from the Treasury it needs to obtain parliamentary approval. This is a legal requirement and is part and parcel of the democratic system. Those who spend the money need to be held accountable. This requires transparency on the part of the executive, and that parliament should be a check and balance to ensure that those public funds are used in the public interest.

There are three methods by which parliament may be brought into the picture to give the government the legal sanction for the actions that need to be taken. These have been summarized by Ameer Faaiz, LL.M, Attorney-at-law, & Nizam Kariapper, LL.M, President’s Counsel, in an article titled “A looming constitutional crisis, courtesy Covid-19” and published in the Groundviews website. The first option would be to set the date for fresh general elections that would enable the convening of a new parliament on or before 2nd June 2020, which is the constitutional deadline for the new parliament to meet. This permits the Election Commission to publish a new date for the poll. However, with COVID still raging, this is a dangerous option for the health of the country, for which the government, medical personnel and people have made great sacrifices to protect. It will also not help the government to address the issue of obtaining public funds after April 30.

The second option would be for the president to use the power vested in him of by Article 70(7) of the constitution. Under Article 70(7) of the constitution, the president is empowered to summon parliament any time after its dissolution to deal with an emergency. The provision reads as follows: “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.” The third option would be for the president to rescind the proclamation he issued on March 2 to dissolve parliament. If this is done it would restore the parliament which was originally elected on 17 August 2015 to continue until 1 September 2020.

From the perspective of public safety, and to preserve the gains that the long curfew and lockdown have brought with it, while remaining within the frame of the constitution, the government will need to choose between two latter options, both of which involve reviving the dissolved parliament. The option to utilize Article 70(7) of the constitution that permits parliament to be revived for emergency measures would be politically least costly to the government. It will enable the regularization of the curfew, passage of a short term budget, amending laws and, hopefully, to evolving an all-party mechanism to decide on a legal amendment that would take into account the inability for a newly constituted parliament to be convened before June 2. The other option would be for parliament to be recalled by the president to serve the balance five months of its term until September 1, 2020.