Posted on May 7th, 2020

Palitha Mapatuna

Suppose that an individual has been authorised to get rid of an existing tree, which perhaps had been perceived by many as producing unpalatable fruit.

Following such riddance, the replacement has been required to be made within a particular time.

However, subsequent unforeseen circumstances had not made it possible to carry out the replacement within the stipulated time.  

It seems now necessary that the replacement is made as soon as possible.

As authorised by the constitution, the president has dissolved parliament and, as obligations arising therefrom, stipulated the dates of the election of new members and convening of the new parliament. 

However, subsequent unforeseen circumstances in Sri Lanka, arising from Covid 19, have rendered the obligations regarding the dates not possible to fulfill. Accordingly, it is apparent that he is absolved of the need to fulfill such obligations with regard to the dates.

The Parliament Elections Act (No. 1 of 1981), hereinafter referred to as the Act, seems to have been based on Article 101 (1) of the constitution and, in this Article, item (i) enables, among other things, Parliament to enact law to make provision  ‘…for other matters as are necessary or incidental to the election of Members of Parliament….’    

Of the Act, Section 24 (3), supported by Section 129, seems to provide the elections commission with adequate authority to, in ‘unforeseen circumstances’, postpone an election ‘in any electoral district’ and hold it subsequently, and in the manner indicated therein.

Here, the terms  ‘in any electoral district’ does not appear to necessarily mean one particular district (several could be involved). 

In any case, the governing principle here seems to be not quantitative, but ‘unforeseen circumstances’. The whole purpose of this provision seems to be to enable the meeting of these circumstances and, therefore, could apply generally to all districts.

Additionally, in case of difficulties in effecting any of the provision in the Act, Section 129 therein essentially seems to enable the commissioner to issue all directions deemed necessary, for providing for any special or unforeseen circumstances or determining or adjusting any question or matter for which no provision or effective provision is made in the Act.

Thus, these sections in the Act seem to provide the elections commission the necessary authority to postpone the general election and conduct it as soon as it is conducive and in accordance with requirements.

In any case, ‘the doctrine of necessity’, in the face of the unforeseen circumstances arising from Covid 19, seems applicable in providing the necessary authority to the elections commission.

Upon conducting the election, it would be the responsibility of the president to convene the new parliament at the earliest possible date.

Palitha Mapatuna

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