 Petitions mount before SC pushing for reconvening of Parliament  EC to meet on Tuesday to decide fate of 2020 general election The meeting with the former parliamentarians, convened by Prime Minister (PM) Mahinda Rajapaksa on Monday (4), was attended by all former MPs of the governing party. The Tamil National Alliance (TNA) was the largest group to attend the meeting out of the Opposition political parties. A total of 16 political parties had attended the meeting. However, the United National Party (UNP), Janatha Vimukthi Peramuna (JVP), and Samagi Jana Balawegaya (SJB) did not attend. Former President Maithripala Sirisena arrived a little late and attended the meeting as a former parliamentarian. The PM had invited all former parliamentarians, including those who had represented the legislature in the past while Opposition political parties of the last Parliament issued statements claiming they would not be attending the meeting. At the outset of the meeting held at Temple Trees, the TNA lobbied PM Rajapaksa about the importance of reconvening the dissolved Parliament to deal with several constitutional and legal issues which have arisen. The party also reiterated the stance it took in signing the joint statement issued by the Opposition political parties recently, that their MPs’ support would be publicly pledged towards the Government’s relief efforts and they wouldn’t attempt to undermine the stability of the regime. Rajapaksa said that the proposals made by the former MPs would be taken into consideration when taking necessary measures in the future. The senior representative of the State Intelligence Service (SIS), Health Services Director General, Prime Minister’s Secretary, Treasury Secretary, and the members of the Covid-19 Task Force also participated in the meeting to brief the former MPs, address their concerns, and answer their queries on issues ranging from Covid-19 to financial management. The health authorities had made a presentation to the former legislators on the current situation of Covid-19 in the country, while the Intelligence Chief had assured that the second and third contacts of the infected persons have been identified and steps had been taken to isolate or quarantine them. Special attention had been given to the distribution of Rs. 5,000 among low-income families and the issues faced in distributing it across the country. Several MPs from most parties present also voiced their concerns over the forcible use of schools by military personnel. The Premier listened to their concerns, had aides take detailed notes of specific instances, and stated that the Government was generally aware of these issues and would look into specific cases and take the required measures. Meanwhile, a statement issued by the Prime Minister’s Office stated that Premier Rajapaksa had told the former MPs that the country had not received any foreign financial aid for the Covid-19 activities in the country. However, Finance Ministry Secretary S.R. Attygalle had stated that financial aid worth $ 127 million offered by the World Bank (WB) would be received in the near future and that it would be utilised to cover the expenses of the Health Ministry and the Covid-19 eradication campaign. It was the US that responded immediately as soon as the Premier’s statements were made public in the media. The US on Wednesday (6) announced the commitment of more than $ 4.5 million to help Sri Lanka in its fight against Covid-19. This brings the total US contribution to $ 5.8 million. “This assistance continues the long tradition of US support for Sri Lanka’s security and sovereignty,” said US Ambassador to Sri Lanka Alaina B. Teplitz. “Over the past 20 years, US assistance in Sri Lanka has totalled more than $ 1 billion, including $ 26 million for health.” This assistance, channelled through the United States Agency for International Development (USAID), includes $ 2 million to increase social services for areas and populations most impacted by the crisis, and support for activities that build social cohesion. Another $ 2 million will strengthen small and medium enterprises and increase women’s economic participation. As part of the newly announced assistance, the US is also providing $ 590,000 in humanitarian assistance that will support vulnerable people during the pandemic. This new assistance builds on the $ 1.3 million in health assistance the US Embassy announced on 9 April, which is helping the Government prepare laboratory systems, activate case-finding and event-based surveillance, and support technical experts for response and preparedness. Meanwhile, the Government commenced a dialogue with the International Monetary Fund (IMF) for emergency financial support. IMF Director – Communications Department Gerry Rice during a press briefing on Thursday (7) said: “We have received a request from the Sri Lankan Government (GoSL) for emergency financial support, under the rapid financing instrument.” He further noted that the IMF will be working in close co-ordination with the GoSL to assess all relevant factors related to that request. “I can also say that the Sri Lankan authorities also expressed interest in a range of options for future engagement with the Fund, and, in this context, again, we’re discussing the authority’s intention to replace the extended fund facility arrangement that they had with the rapid financing instrument,” Rice added. TNA meets MR After the meeting at Temple Trees last Monday, the TNA met with the Prime Minister at his official residence on Wijerama Mawatha in Colombo and reiterated its offer to support to the Government to address key national issues. The offer was repeated in a memorandum submitted by the TNA directly to the Prime Minister at this discussion. In the memorandum, the TNA noted the need to address outstanding issues, including issues faced by the Tamils and the enactment of a new constitution, apart from focusing on the crisis resulting from the coronavirus. “We are prepared to extend our co-operation to the resolution of these issues in a reasonable and acceptable manner in the interests of the country and all its people.” However, the TNA emphasised that the meeting summoned by the Prime Minister was not and cannot be a substitute for convening the Parliament. “We are of the firm view that Parliament must be convened as stated in our joint statement to deal with several constitutional and legal issues that have arisen, which Parliament alone can deal with.” The memorandum handed over to the Prime Minister included the following assertions: 1. The Pandemic – the coronavirus – has been gradually escalating. Much more needs to be done to eradicate it completely from our country, there is a legitimate fear amongst the people that it could further escalate with grave consequences. The country’s united efforts are needed in this regard. 2. At all national elections over the past 25 years since 1994, over five terms of both Parliament and presidency, the people have in the exercise of their sovereignty – their franchise, rejected the 1978 Constitution, and given a mandate for the enactment of a new constitution, encompassing all three components of their sovereignty – powers of governance – including legislative executive and judicial power – fundamental rights, and their franchise. This mandate of the people in the exercise of their sovereignty has not been fulfilled and the country continues to be governed under a constitution rejected by the people for over 25 years. a. The Parliament elected in 2015 unanimously resolved to convert itself into a committee of the whole Parliament – termed a Constitutional Assembly with a Steering Committee and subcommittees in charge of different subjects and an Experts Committee to formulate a new constitution dealing primarily with three issues. i. The executive presidency ii. Electoral reforms to Parliament iii. The National Question, the Tamil Question – sharing of powers of governance 3. All political parties were represented in the several committees established, there was substantial consensus, reports of the committees were filed in the Constitutional Assembly, the process reached its final stages, when it stalled until the dissolution of Parliament. 4. The National Question, the sharing of the powers of governance, has since the enactment of the 13th Amendment to the Constitution, been addressed by all political parties and political leaders and successive governments since 1991 – and much progress has been made – public commitments have been made to the country and to the international community – in regard to how this issue would be addressed and concluded in an acceptable way. 5. The support of the international community was obtained on the basis of such commitments. These commitments have to be kept in the interests of national peace, regional peace, and world peace. It would otherwise appear that the international community was also deceived to betray the Tamil people who were the victims. More petitions against polls Meanwhile, the number of fundamental rights (FR) petitions filed before the Supreme Court (SC) seeking the nullification of several gazettes connected to the pending parliamentary elections saw a drastic increase. The previous week saw Attorney-at-Law Charitha Gunaratne filing an FR petition before the SC seeking to quash the decision of the Election Commission (EC) to hold elections on 20 June and to prevent parliamentary elections from being held altogether, allowing the Executive to rule unilaterally until the Covid-19 case subsides. However, last week saw the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu, senior journalist and activist Victor Ivan, together with seven other members of civil society and the SJB, filing four more petitions before the SC pushing for the reconvening of Parliament and revoking the 2 March decision to dissolve Parliament. Furthermore, former MPs Patali Ranawaka and Kumara Welgama added to the petitions before Supreme Court to declare the dissolution of Parliament null and void. The CPA on Tuesday (5) announced the filing of an FR application challenging the decision by the President to dissolve Parliament on 2 March 2020 and the decision of the EC to reschedule elections to be held on 20 June 2020. Issuing a press statement, the CPA said: “Articles 70 and 33 (2) (c) of the Constitution permit the President to dissolve Parliament prior to the completion of its five-year term, after the passage of four-and-a-half years from its first sitting. The President used this power to dissolve the Eighth Parliament on 2 March 2020 by Gazette Extraordinary No. 2165/8 and fix 25 April 2020 as the date for election of the Ninth Parliament. This was despite the fact that Covid-19 was spreading across the world, and Sri Lanka too was taking steps to combat it. “The declaration of Covid-19 as a pandemic, and its rapid spread resulted in the Election Commission making a decision to postpone the election. Thereafter, on 20 April 2020, the Commission issued Gazette Extraordinary No. 2172/3 fixing the election for 20 June 2020. “The Gazette by which the Eighth Parliament was dissolved fixed the date for the first meeting of the Ninth Parliament for 14 May 2020. The petitioners have stated that while the said Gazette remains in place, a new date for the election of the Ninth Parliament cannot be fixed beyond 2 June 2020. “The petitioners argued that regardless of how it is dissolved, Article 70 (5) of the Constitution provides a mandatory time limit within which a new Parliament should meet, i.e. three months from the date of dissolution. The petitioners state that if the 2 March 2020 dissolution is permitted to stand, this would have required the new Parliament to meet for the first time by 2 June 2020. Thus, a decision to hold the election on 20 June 2020 is unconstitutional, and a violation of their fundamental rights. “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 20 June. “The lack of a functioning Parliament for more than three months undermines the sovereignty of the people and undermines the rule of law. In light of all these circumstances, the petitioners have requested the Supreme Court to declare that their fundamental rights under Articles 12 (1) and 14 (1) (a) of the Constitution have been violated,” the statement read. Meanwhile, Ivan was joined by T.M. Premawardana, Prof. Anton Meemana, A.M. Jiffry, S. Sivagurunathan, Mahinda Hattaka, M.S. Jayakodi, and Dr. H.D.S.F.D. Hearth in filing yet another petition before court. These petitioners have stated that the Eighth Parliament was dissolved and/or purportedly dissolved on or about 2 March 2020; 25 April was nominated and/or purportedly nominated as the date for elections, and the new Parliament was summoned and/or purportedly summoned to meet on 14 May 2020 in terms of Gazette Extraordinary No. 2165/8 of 2 March 2020. They have noted that thereafter, the EC gave inter alia notice of polls on or about 20 March 2020 that the election would be held on 25 April 2020. They have further stated that the members of the EC have held out in media appearances that unless a free and fair poll can be held on 20 June 2020, which includes the ability for parties and candidates to campaign freely and openly, the date would be postponed even further. They have also noted that in terms of the law and the Constitution, elections must be held and a new Parliament summoned within three months of the dissolution of Parliament. They have hence insisted that the EC was not empowered to alter the date of polls and contends the Gazette notification amending the notification with the date prescribed for the holding of polls is unlawful, void ab initio, and of no force or effect in law. They have maintained that a free and fair election cannot be held on 20 June 2020 in view of the Covid-19 pandemic and measures taken in respect of the same and called for the nullification of the Gazette notification dissolving the former Parliament and calling for general elections. SJB takes a stand While the main Opposition party, the UNP led by Ranil Wickremesinghe, maintained that it would not go before the SC or take any other action to oppose the Government’s decisions to dissolve Parliament or hold the 2020 general election, the SJB, led by former Opposition Leader Sajith Premadasa, has filed an FR petition before the Apex Court last Wednesday (6). The petitioners have requested that the court invalidate the Gazette notification issued by the President to dissolve Parliament and the special Gazette notification issued by the EC on holding the general election on 20 June, as the coronavirus pandemic continues to spread throughout the country. The petition has been filed by SJB General Secretary Ranjith Madduma Bandara. The Attorney General (AG) representing the President, EC Chairman Mahinda Deshapriya, and its members N.J. Abeysekara and Ratnajeevan Hoole have been named as respondents. The petition filed by Vidanapathirana Associates points out that according to the Constitution, there is a provision that the next new parliament should be held within three months from the date of the dissolution of Parliament, which was 2 March. However, the EC's decision to postpone the election until 20 June due to its inability to prepare for or hold the elections amidst the Covid-19 pandemic situation, coupled with the President’s firm vow to never reconvene the former Parliament under any circumstances, has resulted in a constitutional crisis that requires the intervention of the SC. AG responds to EC Last Monday (4) also saw the AG responding to the request made by the EC for an observation on the legality of the nominations accepted by the Commission for the 2020 general election. The question of the legality of the nominations arose at a meeting between the EC and representatives of political parties last Saturday(2). The point made was that there were legal issues over the nominations accepted by the Commission on 17, 18, and 19 March since these were declared as public holidays. Public Administration Minister Janaka Bandara Tennakoon in a Special Gazette notification declared 17, 18, and 19 March as special public holidays to prevent the spread of the Covid-19 outbreak. The EC Chairman however responded to the queries saying he would seek the AG’s advice. “I have considered the contents of the aforesaid letter and the applicable provisions of the law. It is observed that nominations have been accepted by you in respect of the Parliamentary Elections Act. In this context, it is further observed that you have also taken consequential steps for the conduct of elections. Therefore, in the circumstances, you are required to follow the procedure established by law for the conduct of the parliamentary election,” the AG said in his response to the EC. The EC is to meet this Tuesday (12) to discuss the issue of nominations and to also discuss the Covid-19 situation in the country at present. The Commission, which was earlier scheduled to release the numbers of the candidates at the upcoming election last Monday (4), differed the decision following the issues raised over the legality of nominations. Therefore, the Commission is also expected to discuss the matter of issuing numbers to candidates at Tuesday’s meeting. Nevertheless, the issue of nominations apart, the fate of the 20 June general elections hangs in the balance, in the hands of the SC, due to the brewing constitutional crisis. Mangala strikes again Former Minister Mangala Samaraweera on Tuesday (5), sending another letter to President Gotabaya Rajapaksa, has challenged the President seeking an explanation and to prove the constitutional authority he and his Government possess to authorise and incur public expenditure from 30 April 2020. Samaraweera made these remarks in a letter addressed to President’s Secretary Dr. P.B. Jayasundera. The former Finance Minister had first written to the President on 28 April requesting Parliament be reconvened to find a solution to the impending constitutional crisis. He received a response letter on the 30 April by Dr. Jayasundera. In his letter to Dr. Jayasundera, the former Finance Minister charged that there is no appropriation bill or vote on account duly passed by Parliament for public spending after 30 April 2020 and that the President may override fiscal powers of Parliament and authorise expenditure from the Consolidated Fund only for a period of three months after the convening of a new parliament consequent to a general election. He added that under Article 150 (4) of the Constitution, the President is otherwise only authorised to issue and spend from the Consolidated Fund for expenditure incurred in holding a general election. “Except for the above and the provisions of Article 150 (3), there is no other provision in the Constitution that allows the President to exercise his authority to withdraw and spend funds from the Consolidated Fund for public services,” Samaraweera added. “Therefore, my letter to the President emphasised that only Parliament can lawfully authorise spending of public funds from 30 April 2020, up to the date on which Parliament is summoned to meet again. Although the Election Commission has announced that the general election will be held on 20 June 2020, the date on which the new Parliament shall be convened has not yet been declared officially.” He further noted that Parliament has full control over public finances in terms of Article 148 of the Constitution. Following is the text of Samaraweera’s letter: “Regarding your reply to my letter to HE the President on 28 April 2020. It is regrettable to note that your reply to my letter addressed to HE the President on 28 April 2020, requesting that Parliament be reconvened conditionally to resolve the crises constitutionally and to approve public expenditure does not address the pertinent issues mentioned in the letter but instead, refers to some other external matters of no consequence. It is, in fact, unbecoming of a senior public official of your stature to send a political reply with no basis with the objective and intention of defaming the past Government to conceal facts from the people and mislead the public. The Constitution is the supreme law of the country. Elected leaders of the country and public officials publicly pledge to uphold and defend the Constitution, based on the admirable concept that there can be no democratic governance in a lawless country. It is the Constitution that is supreme and not an individual or political party. In fact, governments come into being as stipulated by the Constitution. At present, Sri Lanka faces a crisis that exceeds the Constitution. Although the President issued an Extraordinary Gazette notification declaring the dissolution of Parliament, it has not been possible to hold parliamentary elections on the date specified therein. Also, it is not possible to convene the new parliament within three months of dissolution i.e. by 2 June 2020, as stated in the same Gazette notification. In this context, as stated in your letter and as per the opinion of constitutional experts, the President shall be authorised to issue and spend money from the Consolidated Fund only for three months from the date on which the new Parliament is summoned to meet. All these crises are attributed to the failure of the present Government to present a budget for 2020 after assuming office in November 2019. In my letter dated 28 April 2020, addressed to the President, I elaborated comprehensively and emphasised that there is no appropriation bill or a vote on account duly passed by Parliament for public spending after 30 April 2020. Accordingly, the President may override fiscal powers of Parliament and authorise expenditure from the Consolidated Fund only for a period of three months after the convening of a new Parliament consequent to a general election. Therefore, I challenge the President and the Government to explain and prove the constitutional authority they possess to authorise and incur public expenditure from 30 April 2020, until the date on which a new Parliament is summoned to meet consequent to the parliamentary general election. However, under Article 150 (4) of the Constitution, the President is authorised to issue and spend from the Consolidated Fund for expenditure incurred in holding a general election. Except for the above and the provisions of Article 150 (3), there is no other provision in the Constitution that allows the President to exercise his authority to withdraw and spend funds from the Consolidated Fund for public services. Therefore, my letter to the President emphasised that only Parliament can lawfully authorise spending of public funds from 30 April 2020, up to the date on which Parliament is summoned to meet again. Although the Election Commission has announced that the general election will be held on 20 June 2020, the date on which the new Parliament shall be convened has not yet been declared officially. I state here that Parliament has full control over public finances in terms of Article 148 of the Constitution. More than five months have passed since this minority Government was formed after the presidential election of 16 November 2019. So far, it has failed to submit an appropriation bill or a vote on account. I recall that the United National Party (UNP), which came to power in January 2015, was also a minority Government for nine months. Nevertheless, we were able to muster support from all in the governing and Opposition parties to submit a budget for the year 2015 in January 2015 and gain majority vote for approval in Parliament. The current minority Government which came to power after 16 November 2019, has consistently failed to present a vote on account or a budget that is acceptable to the majority in Parliament which is a breach of responsibility and also a sad state of affairs. Parliament has not yet passed a legitimate budget or vote on account to be effective from 30 April 2020. This Government has already violated the Vote on Account which was passed by the previous Government and its term ended on 30 April 2020. According to the Vote on Account, the borrowings limit was Rs. 721 billion. However, this Government has unlawfully obtained loans exceeding the limit approved by Parliament. This has pushed the fiscal situation of the country into a crisis and a future government will have to consider the legality of such loans. Such irresponsible action will also have serious long-term negative repercussions on Sri Lanka, internationally. Therefore, considering the multiple crises faced by the country, I reiterate that Parliament be immediately reconvened with the support of all political parties represented in Parliament to approve all essential expenditures including salaries for the public service for the period from 30 April 2020, up to the date on which a new Parliament is summoned to meet after the general election.” The Government has yet to respond to Samaraweera’s latest salvo, but the intense and public back-and-forth has caused concern among cabinet members and Finance Ministry officials about the possibility of facing litigation over spending during this period. With the legislature defunct, the Rajapaksa regime focused on trying to control the coronavirus, and the Opposition parties moving the SC to prevent parliamentary elections a second time in less than two years, it is once again likely to be the judiciary that determines the political future of Sri Lanka.