Thursday, May 7, 2020

The Government Is Pursuing A Dangerous Path Of Ruling By Extraconstitutional Means

By Harsha Gunasena –
Harsha Gunasena
The President dissolved the parliament on 2 March and the general election was scheduled on 25 April. In his proclamation he has given the date 14 May to summon the new Parliament to meet. 
Envisioning a constitutional crisis the National Election Commission (NEC) requested the President to refer the matter to the Supreme Court and the reply was that the there was no reason hindering to hold the election prior to 2 June.
There after the NEC has decided that the general election will be held on 20 June and the relevant gazette notification has been issued. 
The NEC has postponed the general election as per the powers vested to them under the Section 24(3) of the Parliamentary Elections Act No1 of 1981. According the Article 70(5) (a) of the constitution, the proclamation dissolving parliament shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. Therefore, the date should be prior to 2 June.
After the decision of the NEC to hold the election on 20 June which is a date after 2 June as stipulated by the constitution, a constitutional crisis was created. 
Therefore, there will be petitions to the Supreme Court challenging the decision of the President.
Even now the country is not governed in accordance with the constitution.
Prior to the 19th amendment to the constitution according to Article 44(2) the President may assign to himself any subject or function and shall remain in charge of any function or subject not assigned to any minister. This was repealed by the 19th amendment and therefore the President cannot hold any portfolio. But the President has not assigned the Defence portfolio to any one and hence he acts as the de facto Minister of Defence. Not only that, he has assigned other departments to the Ministry of Defence by the gazette notification on 10th December 2019. On 17 March 2020 he assigned the Department of Immigration and Emigration to the Ministry of Defence.
A state of emergency is prevalent in the country now. However, a state of emergency was not declared by the President. According to Article 155(4) (i) if a state of emergency is declared, the President will have to summon the dissolved parliament. Therefore, a police curfew was declared. It is not possible to impose police curfew in massive scale as of now. Therefore, it is illegal. According to M.A. Sumanthiran, that was the reason he was able to get Ranjana Ramanayake released recently.
If not remedied urgently, this will spread further destabilizing our Democracy.
Other than the government and its supporters, all the others including the opposition political parties and civil society expected to withhold the election until such time the epidemic is settled. It is a fair expectation. However, the government wanted to have it prior to 2 June. The government postponed taking remedial action against Covid-19 until the conclusion of the nominations. The current situation is a support of the intentions of the government to rule ignoring the provisions of the constitution. It is more dangerous if there would not be any possibility to hold the elections on 20 June.
Then the Minister of Finance got a resolution passed by the parliament on 23 October 2019 under Article 150 (2) approving the expenses of the government from 1 January 2020 to 30 April 2020. Therefore, the President does not have any authority to spend after 30 April 2020 since according to Article 148, parliament shall have full control over public finance.
However, there are two exceptions where the President can authorize the payments from the consolidated fund. One is where  the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law (Article 150(3)) and the other is where the President dissolves Parliament and fixes a date for an election and the dissolved parliament did not provide the expenses for the election (Article 150(4)).
The legal advisors to the President may opine that the doctrine of necessity may allow the President to act disregarding the constitution. But M.A. Sumanthiran PC points out that the doctrine of necessity can be operated when there are no other actions available according to the constitution. In this case, according to Article 70(7) the President can summon the parliament by proclamation if he is satisfied that there is an emergency has arisen. 
M.A. Sumanthiran PC has stated at a Television programme conducted by Sirasa TV that since the President shall declare the date of summoning the new parliament in his proclamation to dissolve the parliament and it should not be after 2 June, when the NEC declared the date of election after 2 June, the President’s proclamation to dissolve the parliament will become null and void. This is a strong argument. 
The Parliament is one of the three main pillars of a Democracy. Therefore, no one can argue that it is not necessary. If the people think that it is not necessary, they can assign all the powers to the President and abolish the parliament by a referendum. It is not fair to say at this point where the opposition parties have stated that they will support the government to pass the necessary resolutions, that it is not necessary to summon a parliament where they do not have the majority at a time of a national disaster. That can be said only by the people who place their own political interests ahead of the national interest. 
People who support the government politically should realise that to tell the government to act according to the constitution is not going against the government politically. We act to the defence of our Democracy. It is very easy to say that we need a dictatorship while staying in a Democracy, but it would be a matter of life and death to say that we need a Democracy while staying within a rule of dictatorship.
  • JD / April 22, 2020
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     9
    Mr. Harsha Gunasena: You can not be dumb. But, because of your mentality or your ideology you see only the negative. What is more important ? Is it the country running peacefully or the obedience or following the constitution. Are there any other legislation or parts of constitution or is it possible for the president to take decisions on behalf of the island in such unique and desperate situations.
    I remember how hostile the part of the country during the LTTE annihilation The same situation arose thereafter too. I do not know why should the president listen to hateful revengeful disappointed saboteurs like you because they are financially and ideologically supported by some one from behind.
    Sri lanka definitely needed some cultural revolution to change this mindset. You people need to be brain washed (that is according to their vocabulary).
    • Harsha Gunasena / April 22, 2020
       8
       0
      JD
      When you are criticizing an article, you should read the article carefully and counter argue to break the points raised. You have not done that.
      What I very clearly said was country should be governed according to the law of the country. This is not a family business to be run based on the whims and fancies of the persons who are running it. They are running the country for a certain period on public trust. Therefore they should abide by the law of the country. This is the basic principle of a Democracy.
      Mind you, you are accusing me that I am “financially and ideologically supported by some one from behind”. You are doing so under a psudo name. No one knows your identity, whereas I am fully exposed with my name and the photograph. That, I believe, is cowardness.
      Rather than accusing the writer, let us debate about what was written, if you can do so with an open mind.
  • JD / April 23, 2020
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     4
    Harsha: Forget the accusation. It is very important that the country be run properly. Laws and every thing else of similar nature are important when the country is not run properly. Right now, a new president is running the govt with a not very effective govt, but very properly, I would say. What you say, let the patient die, but his stomach should be clean. I say the opposite. I do not know know why you can not understand or because of what reason, Parliamentary crooks are used to manipulate the law as they wish and all the lovers of the Law or very Law abiding people were no where to be found those days.
    Why should we shut up for ever for these patriotic imposters ?

Harsha Gunasena / April 23, 2020
 1
 0
JD
Thanks for your comment.
I will focus on the form in my first two points and would focus on the contents in the 3rd point.
1. You said “Forget the accusation”. If I were you I would have apologized. You did not even say that you agree to my comment either.
2. I ask you a hypothetical question. You have to be honest in this case. What would be your response if an opposition leader, say Ranil Wickremesinghe is the President now and he pursue the same path as the current President and Mahinda Rajapaksa is the opposition leader. If your response differs then there is nothing to argue with you. If your response is the same, can you give evidence from your previous comments or any other source to the effect that you have followed the same path through out.
My answer for that hypothetical question will not change from my present stance. In evidence I can give examples from my articles where I have criticized most of our past leaders for their certain actions and praised the very persons for their certain actions.
3. Regarding the contents of the main argument, I think I have given enough points in the article and in my previous comment. I invite you to read it once again. What you say is that the President is running the country properly so that he does not need any assistance from the Parliament. The issue of the subscribers to this argument is that they do not have the majority of the current Parliament. If they have the majority then the question of the corrupt politicians does not arise. By summoning the parliament the patient will not die but he will live longer. For instance Opposition Leader asked several questions in January or February related to Covid-19. Govt has given irrelevant answers. If they took actions then the disaster would have been minimized. Parliament is not appointed by themselves. They were elected by the people and they have a different mandate from the people different to that of the President. I agree with you, there may be crooks but that is a different issue. Do not mix it up with the problem we discuss. Please read my last comment and the last two paragraphs of the article before answering if you wish to do so.

Published in Colombo Telegraph on 22 April 2020

epublished in My Ceylon

http://myceylon.online/tag/https-i0-wp-com-www-colombotelegraph-com-wp-content-uploads-2019-05-harsha-gunasena-e1558594371425-150x150-jpgresize150150ssl1/

Republished in Sri Lanka Two
https://srilankatwo.wordpress.com/2020/04/25/the-government-is-pursuing-a-dangerous-path-of-ruling-by-extraconstitutional-means/

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Saturday, April 18, 2020

The Government is playing with fire: Balancing COVID-19 with elections


 
The President delayed taking action against the virus until the nominations were concluded

We have a virtual Minister of Defence and a virtual state of emergency and the Government is trying to have a virtual election while the healthcare workers, Armed Forces and the Police are doing a great job in an operation against COVID-19 virus, once again with the direction of the Government.

The President dissolved the Parliament on 2 March and the General Election was scheduled on 25 April amidst the spread of COVID-19 virus internationally. The new Parliament was scheduled to meet on 14 May. At the SAARC leaders meeting held on 15 March, the President declared that the election would be held at the scheduled date. Several ministers also supported the idea that the elections would be held as usual.

Accepting of nominations started on 12 March and concluded on 19 March. Soon after the conclusion of accepting the nominations, the Chairman of the National Election Commission (NEC) declared that the elections would be postponed indefinitely. A Gazette notification to this effect was issued by NEC on 21 March.

The Chairman of the NEC has written to the Secretary of the President on 1 April stating that according to the Constitution the Parliament should be summoned latest by 2 June and in order to meet that requirement the elections should be held by 27 or 28 May and the preparation for the poll should be commenced by 20 April at least. The Chairman requested the Secretary to bring this situation to the attention of the President saying it would be most suitable for him to promptly seek guidance form the Supreme Court in this regard.

Article 70 (5) (a) is as follows. “A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.”

Secretary to the President responded to this letter on 6 April and stated as follows:

“As per the advice by His Excellency, it is not possible at this point of time to state that the election cannot be held on or before 28.05.2020. The date for fixing the poll is the responsibility of the Election Commission and His Excellency has no wish to interfere with duties and obligations of the Election Commission.”

“I need hardly emphases that it is the right of the people of this country to exercise their franchise, which their sovereign right.”

“In the total circumstances set out hereinbefore, I am instructed to inform the Election Commission that the question of Reference to the Supreme Court in terms of Article 129 of the Constitution does not arise.”

The Secretary says that the election can be held on or before 28 May.

It should be noted that the World Health Organisation (WHO) declared that the outbreak was a public health emergency on 20 January and that it can be characterised as a pandemic on 11 March, prior to the meeting of the leaders of SAARC.

The WHO Director General said. “Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death. We have never before seen a pandemic sparked by a coronavirus. This is the first pandemic caused by a coronavirus. And we have never before seen a pandemic that can be controlled, at the same time.”

COVID-19 is a dangerous virus which has taken 119,000 lives world-wide so far with 1.92 million active cases.

The President delayed taking action against the virus until the nominations were concluded. At the beginning of that week a public holiday was declared followed by few days of ‘working at home’ while ensuring that the officers related to the nomination process were at work. Island wide curfew was declared on the following day of the conclusion of nominations, 20 March. From that day onwards curfew was extended throughout the country with lifting the same for short durations. Now Western Province and Jaffna District have indefinite curfew and in other districts it gets lifted for 10 hours every few days, allowing people to buy essential goods.

The President appointed the Army Commander as the Head of the National Operation Centre for the prevention of the spread of COVID-19 on 17 March. This appointment was not gazetted and the terms of reference was not published. The identities of the other members of this operation centre are not known. Based on its website it appears to be that the task of the centre is the management of the quarantine process.

A Presidential Task Force was appointed on 26 March and it was gazetted (No. 2168/8), members were nominated, and terms of reference was identified. The focus of the Task Force was management of food supply and various administration work. It has nothing to do with the management of the virus- related issues. It was heard that there is a technical task force, but its members are not known.

In its operations the Task Force has decided to close the economic centres, which affected the farmers and hampered the delivery of vegetables throughout the island. The economy is at standstill. Daily wage earners are in dire consequences. The operation is like that of a war of which the sole target is to eradicate the virus as early as possible. These are good intentions but there are side effects as well. Many countries in the world are very conscious of their economies as well. They try to manage carefully the pandemic and the economy.

It appears to be that the epidemiologists who are trained to handle epidemics are not in the forefront and they are not in control. The best example is that on 11 April it was reported that it was made mandatory to use face masks when people are going out but in the website of the Epidemiology Unit of the Ministry of Health it is clearly states that it is not necessary.

Having delayed the starting of the process of combating the virus until the nominations were concluded, the President, after issuing the letter to the Chairman stating that the elections can be held by 28 May, now started giving signals that the situation will be eased by that time. On April 11 it was decided that the second school term will be started on 11 May. On 12 April it was decided that the universities would be re-opened for staff on 4 May, for final year students on 11 May and for all students on 18 May. What is the basis of fixing these dates? What is the contribution of epidemiologists on deciding of the dates? It appears to be that these days are fixed to be in line with the possible election date indicated to the Chairman of the NEC, 28 May.

This is a dangerous game indeed. Every day there are new patients reported. At the time this article was being written the total number of patients had passed 230. The World Health Organization has clearly said that the relaxation of the measures taken to combat the virus should be slowed down by stages and they warn that ad hoc relaxations would lead to another pandemic. It would be too early to set the deadlines now. However, it would be great if the deadlines can be achieved.

An election cannot be held under these circumstances and in this type of rush.

The argument of the Secretary that the people should be allowed to use their franchise, was brought in during the time when the former President dissolved the Parliament illegally in October 2018 as well. Supreme Court held that adhering to the constitution was the best way to maintain the sovereignty.

Many writers illustrated provisions of the Constitution to re-convene the Parliament in this grave hour and the dire necessity of doing so. If the Parliament is convened the problem raised by the Chairman of the NEC may be solved based on the legal provisions. In addition to that several other problems such as overseeing the process of combatting the virus and approving necessary finances to run the country and to combat the virus, can be solved.

On 20 February, at the last date of the Parliament sessions, the Leader of the House wanted to bring a motion to get the approval of Government expenditure and to raise the borrowing limit. According to the Leader of the Opposition, at the Party Leaders meeting, the Opposition supported to approve the expenditure and opposed to raise the borrowing limit. It was recorded in the Hansard. However, the Leader of the House withdrew the whole motion and he proposed that the next session of the Parliament would be 3 March. On 2 March Parliament was dissolved. The President in his address to the nation mentioned that the Government was not able to get the expenses approved in the Parliament and hence he has dissolved it.

In the last paragraph of the response the Secretary stated that the referring the matter to the Supreme Court does not arise.

The Chairman of the NEC has written to the President, I believe, under Article 33 (1) (d) which is as follows.

“It shall be the duty of the President to, on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.”

Therefore, we are back to square one.

As discussed, I believe that the entire operation handling COVID-19 is interwoven with the holding of the elections. It is the duty of the President and the Government to find a way out to this constitutional deadlock rather than trying to hold the elections amid the COVID-19 crisis.

It is the duty of the Opposition political leaders to give an assurance to the Government that they will support to pass the necessary laws and approvals needed in this grave hour if Parliament is summoned and to support to solve the constitutional deadlock.
 Published in Daily FT on 17 April 2020
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කොරෝනා සහ මැතිවරණය සමඟ කරන ආණ්ඩුවේ භයානක සෙල්ලම

 
ජනාධිපතිවරයා මාර්තු 2 දා පාර්ලිමේන්තුව විසුරුවා හරිමින් අපේ‍්‍රල් 25 වන දින මැතිවරණය නියම කළේ කෝවිඞ්- 19 වෛරසය ජාත්‍යන්තරව පැතිරෙමින් තිබුණ අවස්ථාවකය. නව පාර්ලිමේන්තුව මැයි 14 කැඳවිය යුතු යයි දින නියම විය. නාමයෝජනා භාරගැනීම මාර්තු 12 දින ආරම්භ වූ අතර අවසන් වූයේ මාර්තු 19 දිනයි. එදිනම ප‍්‍රවෘත්ති සාකච්ඡාවක් පවත්වමින් නියමිත දිනට මැතිවරණය පැවැත්විය නොහැකි බව මැතිවරණ කොමිසමේ සභාපතිවරයා කීය. මේ සම්බන්ධ ගැසට් නිවේදනය නිකුත් කරන ලද්දේ මාර්තු 21 දිනය.
මැතිවරණ කොමිසමේ සභාපතිවරයා අපේ‍්‍රල් 1 දින ජනාධිපති ලේකම්ට ලිපියක් යවමින් ව්‍යවස්ථාවේ ප‍්‍රතිපාදන අනුව පාර්ලිමේන්තුව ජුනි 2 දාට පෙර රැුස්විය යුතු බවත් (ව්‍යවස්ථාවේ 70(5) (අ) වගන්තිය) ඒ අනුව මැතිවරණය අපේ‍්‍රල් 27 හෝ 28 පැවැත්විය යුතු බවත් මේ සඳහා සූදානම් වීම යටත් පිරිසෙයින් අපේ‍්‍රල් 20 දින වත් කළ යුතු බවත් දන්වා සිටියේය. මේ කාලසටහන අනුව කටයුතු කිරීම අපහසු බැවින් ජනාධිපතිවරයාගේ බලතල පාවිච්චි කරමින් මේ පිළිබඳව ඉක්මනින් ශ්‍රේෂ්ඨාධිකරණයෙන් විමසීමක් කරන ලෙස ඉල්ලා සිටියේය. 
මෙයට පිළිතුරු වශයෙන් ජනාධිපති ලේකම්වරයා අපේ‍්‍රල් 6 වන දින යවන ලද ලිපියේ මෙසේ සඳහන් වේ.
”මෙම අවස්ථාවේදී 2020. 05.28 දිනට පෙර මැතිවරණය පැවැත්වීමට නොහැකි යයි කිව නොහැක. මැතිවරණය පැවැත්වීමේ දිනය නියම කිරීම මැතිවරණ කොමිසමේ කාර්යයකි. අතිගරු ජනාධිපතිතුමා මැතිවරණ කොමිසමේ යුතුකම් සහ වගකීම් සම්බන්ධව මැදහත් වීමට අපේක්ෂා නොකරයි.”
”ඡන්ද අයිතිය පාවිච්චි කිරීම මෙරට ජනතාවගේ අයිතිය වන අතර එය ඔවුන්ගේ පරමාධිපත්‍ය අයිතිය බව මම දැඩිව අවධාරණය කරමි.”
”ශ්‍රේෂ්ඨාධිකරණයේ මතය විමසීමට අවශ්‍යතාවක් පැන නොනගින බව මැතිවරණ කොමිසමට දැනුම් දෙන්නැයි මට උපදෙස් ලැබී ඇත.”
මේ අනුව ලේකම්වරයා සඳහන් කරන්නේ මැතිවරණය මැයි 28ට පෙර පැවැත්විය හැකි බවය.
වෛරසය සම්බන්ධයෙන් නිශ්චිත පියවර ගැනීම නාමයෝජනා අවසන් වන තෙක් ජනාධිපතිවරයා පමා කළේය. එම සතිය මුල ජාතික නිවාඩු දිනයක්ද නිවසේ සිට වැඩ කරන දිනද ප‍්‍රකාශයට පත් කරන ලදි. නාම යෝජනා දිනයට පසු දින එනම් මාර්තු 20 වන දින රට පුරා ඇඳිරි නීතිය පනවන ලදි. 
හමුදාපති වරයා කෝවිඞ් -19 වෛරසය සම්බන්ධ ජාතික මෙහෙයුම් මධ්‍යස්ථානයේ ප‍්‍රධානයා ලෙස ජනාධිපතිවරයා විසින් මාර්තු 17  දින පත් කරන ලදි. මෙම පත්වීම ගැසට් නොකරන ලද අතර ඔහුට අයත් කාර්යයන්ද ප‍්‍රකාශයට පත් නොකරන ලදි. එම ආයතනයේ අනෙක් සාමාජිකයන්ගේ නම්ද දැනගන්නට නැත. එම ආයතනයේ වෙබ් අඩවියට අනුව ඔවුන්ගේ කාර්යභාරය නිරෝධායන ක‍්‍රියාවලිය පාලනය කිරීම බව පෙනේ. මාර්තු 26 දින ජනාධිපති කාර්යසාධක බලකායක් පත්කරනු ලැබූ අතර එහි සාමාජිකයන්ද ඔවුන්ගේ කාර්යභාරයද ගැසට් කරන ලදි. ඔවුන් මූලික වශයෙන් ආහාර බෙදාදීම සහ පරිපාලන කටයුතු කරන අතර වෛරසය පාලන ක‍්‍රියාවලිය සමඟ සම්බන්ධයක් නැත. තාක්ෂණික කටයුතු සම්බන්ධ කාර්යසාධක බලකායක් ඇති බව දැනගන්නට ඇති අතර එහි සාමාජිකයන් කවුරුන් දැයි නොදනිමු.
 කාර්යසාධක බලකාය ඔවුන්ගේ කටයුතු කිරීමේදී ආර්ථික මධ්‍යස්ථාන වසා දැමීමට කටයුතු කරන ලදි. මෙය ගොවීන්ට සහ එළවළු බෙදා හරින්නන්ට පාඩුවක් විය. ආර්ථිකය නැවතී ඇති අතර දෛනික අදායම් ලබන්නන් බලවත් අපහසුතාවකට පත්වී ඇත. මෙහෙයුම වෛරසය මැඬලීමේ හමුදා ක‍්‍රියාන්විතයක් ලෙස ඉදිරියට යයි. අපේක්ෂාවන් හොඳ වන අතර ඒවායේ යම් ප‍්‍රතිවිපාක ද තිබේ. ලෝකයේ බොහෝ රටවල් වෛරසය සම්බන්ධයෙන් කටයුතු කිරීමේදී සිය ආර්ථිකයන් පිළිබඳවද සැලකිලිමත් වෙයි. ඔවුහු වසංගතය සහ ආර්ථික කළමනාකරණය කිරීමට උත්සාහ කරති. 
මෙවැනි තත්ත්වයන්වලදී ඉදිරි පෙළ සිට කටයුතු කළ යුතු වසංගත රෝග විශේෂඥයන් පසුපසට ගොස් ඇති බව පෙනේ. මෙයට හොඳම උදාහරණය නම් අපේ‍්‍රල් 11 දින නිකුත්වූ යමකු මහජන අවකාශයට යන්නේ නම් මුඛ ආවරණ පැළඳීම අනිවාර්ය කරන නිවේදනයයි. එනමුත් වසංගත රෝග අංශයේ වෙබ් අඩවියේ ඇත්තේ එය අවශ්‍ය නොවන බවය.
නාමයෝජනා දෙන තෙක් වෛරස මර්දන ක‍්‍රියාවලිය පමා කළ ජනාධිපතිවරයා මැතිවරණ කොමිසමේ සභාපතිවරයාට මැයි 28 දිනට පෙර මැතිවරණය පැවැත්විය හැකැයි දැන්වූ පසු එහි ශක්‍යතාව හඟවන සංඥා නිකුත් කිරීමට පටන්ගෙන තිබේ. පාසල් වාරය මැයි 11 ආරම්භ වන බව අපේ‍්‍රල් 11 නිවේදනය කරන ලදි.
විශ්වවිද්‍යාල එහි කාර්ය මණ්ඩල සඳහා මැයි 4 ද අවසන් වසරේ ශිෂ්‍ය ශිෂ්‍යාවන් සඳහා මැයි 11 ද මැයි 18 දින සම්පූර්ණයෙන්ම ද විවෘත කරන බව අපේ‍්‍රල් 12 නිවේදනය කරණ ලදි. මෙම දින සඳහා පදනම කුමක්ද? ඒවාට වසංගත රෝග විශේෂඥයන්ගේ අනුමැතිය ලැබී තිබේද? අපට පෙනෙන්නට තිබෙන්නේ මේවා මැයි 28 මැතිවරණය සාධාරණය කිරීම සඳහා යොදා ගන්නා බවයි.
 මෙය භයානක ක‍්‍රීඩාවකි. රෝගය ආසාදනය වූවන් දිනෙන් දින ඉහළ යන අතර දැනට එය 214 කි. ලෝක සෞඛ්‍ය සංවිධානය පැනවූ සම්බාධක ලිහිල් කිරීමේදී ඉතා ප‍්‍රවේසමෙන් පියවරෙන් පියවර කළ යුතු බව නිවේදනය කර ඇති අතර එසේ නොකළහොත් වසංගතය නැවත පැතිරීමේ අවදානමක් ඇති බව කියයි. දින නියම කිරීමට මේ අවස්ථාව කල් වේලා වැඩිය. එම ඉලක්ක සපුරා ගත හැකි නම් අපිද සතුටු වමු.
කෙසේ වෙතත් මෙවති තත්ත්වයක් යටතේ මෙවැනි හදිසියක මැතිවරණ පැවැත්විය නොහැක.
ජනාධිපති ලේකම්වරයා ගෙන එන ජනතාවගේ ඡන්ද අයිතිය පිළිබඳ තර්කය 2018 ඔක්තෝබර් මස  ඇතිවූ සිද්ධියේදීද ඉදිරිපත් කරණ ලදි. ශ්‍රේෂ්ඨාධිකරණය ව්‍යවස්ථාව අනුව කටයුතු කළ යුතු බව කියමින් එම තර්කය නිෂ්ප‍්‍රභ කළේය. මෙම අවස්ථාවේදී පාර්ලිමේන්තුව නැවත කැඳවීම පිළිබඳ ව්‍යවස්ථා ප‍්‍රතිපාදන පිළිබඳව බොහෝ විද්වතුන් විසින් කරුණු දක්වා ඇත. පාර්ලිමේන්තුව කැඳවනු ලැබුවහොත් මැතිවරණ කොමිසමේ ප‍්‍රශ්නය විසඳී යාමට ඉඩ තිබේ. එය සිදුවනු ඇත්තේ නීති ප‍්‍රතිපාදන අනුවයි. කෙසේ වෙතත් මුදල් අනුමත කර ගැනීම සහ වෛරසය මර්දන ක‍්‍රියාවලියේ සුපරීක්ෂණය වැනි ප‍්‍රශ්න විසඳී යනු ඇත.
පාර්ලිමේන්තුවේ අවසන් සැසිය පැවැත්වූ පෙබරවාරි 20 දින සභානායකවරයාට ආණ්ඩුවේ වියදම් අනුමත කර ගැනීමේ යෝජනාවක් සහ ණය සීමාව ඉහළ නැංවීමේ යෝජනාවක් ගෙනඒමට අවශ්‍ය විය. විපක්ෂ නායකවරයාට අනුව පක්ෂ නායක රැස්වීමේදී වියදම් අනුමත කිරීමට විපක්ෂය එකඟ වූ අතර ණය සීමාව ඉහළ නැංවීමට විපක්ෂය එකඟ නොවීය. මෙය හැන්සාඞ් වාර්තාවේ සඳහන් වේ. එනමුත් සභානායකවරයා යෝජනාව ඉදිරිපත් නොකළ අතර පාර්ලිමේන්තුව මාර්තු 3 දක්වා කල් තැබීමට යෝජනා කළේය. මාර්තු 2 දා පාර්ලිමේන්තුව විසුරුවා හරින ලදි. ජනාධිපතිවරයා ජාතිය අමතා කළ කථාවේදී පාර්ලිමේන්තුව විසුරුවා හැරීමට දැක්වූ හේතුව වූයේ පාර්ලිමේන්තුව මගින් අවශ්‍ය මුදල් අනුමත නොකිරීම නිසා එය කළ බවයි.
ජනාධිපති ලේකම්වරයාගේ ලිපියේ අවසන් ෙඡ්දය අනුව ශ්‍රේෂ්ඨාධිකරණයට මෙම කාරණය ඉදිරිපත් කිරීමේ අවශ්‍යතාවක් පැන නොනගී.
කොමිසමේ සභාපතිවරයා ජනාධිපතිවරයා අමතා ඇත්තේ ව්‍යවස්ථාවේ පහත දැක්වෙන  33(1) (ඈ ) වගන්තිය යටතේ විය හැක.
”ජනාධිපතිවරයාගේ කාර්යය විය යුත්තේ මැතිවරණ කොමිෂන් සභාවේ උපදෙස් මත නිදහස් හා  සාධාරණ ඡන්ද විමසීම් සහ ජනමත විචාරණ පැවැත්වීම සඳහා උචිත වාතාවරණය නිර්මාණය කිරීම තහවුරු කිරීම වන්නේය.”
එබැවින් අපි ප‍්‍රශ්නයේ මුලට පැමිණ සිටිමු.
සාකච්ඡා කළ පරිදි කෝවිඞ් -19 මැඬලීමේ සම්පුර්ණ ක‍්‍රියාවලිය මැතිවරණය පැවැත්වීමේ ක‍්‍රියාවලියත් සමඟ එකිනෙක වෙලී ඇති බව පෙනේ. වෛරස අර්බුදය මැද මැතිවරණය පැවැත්වීමට උත්සාහ කරනවාට වඩා ඇතිවී ඇති ව්‍යවස්ථා අර්බුදය සමනය කර ගැනීමට ජනාධිපතිවරයා සහ ආණ්ඩුව උත්සාහ ගත යුතුය.
විපක්ෂ දේශපාලන පක්ෂ නායකයන් පාර්ලිමේන්තුව නැවත කැඳවුවහොත් අවශ්‍ය නීති පැනවීම් සහ වියදම් අනුමත කිරීම්වලට සහයෝගය දෙන බවට ආණ්ඩුවට සහතිකයක් දිය යුතුය. එමෙන්ම ව්‍යවස්ථා අර්බුදය සමනය කර ගැනීමටද ඔවුන් සහයෝගය දිය යුතුය.
හර්ෂ ගුණසේන
Published in Anidda on 14.4.2020
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The Government Is Playing A Dangerous Game

By Harsha Gunasena –
Harsha Gunasena
Our country is facing a severe challenge today with Covid-19 virus. Health care workers, Armed Forces and the Police are doing a great job in this grave hour, of cause with the direction of the government. The intention of this article is to identify if there are any political motives behind the operation to combat Covid-19.
The President dissolved the parliament on 2 March and the general election was scheduled on 25 April amidst the spread of Covid-19 virus internationally. The new parliament was scheduled to meet on 14 May. At the SAARC leaders meeting held on 15 March, the president declared that the election will be held at the scheduled date. Several ministers also supported the idea that the elections will be held as usual. Accepting of nominations started on 12 March and concluded on 19 March. Soon after the conclusion of accepting the nominations, the Chairman of the National Election Commission (NEC) declared that the elections will be postponed indefinitely. A Gazette notification to this effect was issued by NEC on 21 March.
Article 70 (5) (a) is as follows. “A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.”
Secretary to the President responded to this letter on 6 April and stated as follows.
“As per the advice by His Excellency, it is not possible at this point of time to state that the election cannot be held on or before 28.05.2020. The date for fixing the poll is the responsibility of the Election Commission and His Excellency has no wish to interfere with duties and obligations of the Election Commission.”
“I need hardly emphases that it is the right of the people of this country to exercise their franchise, which their sovereign right.”
“In the total circumstances set out hereinbefore, I am instructed to inform the Election Commission that the question of Reference to the Supreme Court in terms of Article 129 of the Constitution does not arise.”
The Secretary says that the election can be held on or before 28 May. 
It should be noted that the World Health Organisation (WHO) declared that the outbreak was a public health emergency on 20 January and that it can be characterized as a pandemic on 11 March, prior to the meeting of the leaders of SAARC. WHO Director General said. “Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death. We have never before seen a pandemic sparked by a coronavirus. This is the first pandemic caused by a coronavirus. And we have never before seen a pandemic that can be controlled, at the same time.” Covid-19 is a dangerous virus which has taken 114,000 lives world-wide so far with 1.85 Mn active cases. 
The President delayed taking action against the virus until the nominations were concluded. Island wide curfew was declared on the following day 20 March. From that day onwards curfew was extended throughout the country with lifting the same for short durations. Now Western Province and Jaffna district have indefinite curfew and other in other districts it gets lifted for 10 hours after few days allowing people to buy essential goods. 
The President appointed the Army Commander as the Head of the National Operation Centre for the prevention of the spread of Covid-19 on 17 March. This appointment was not gazetted and the terms of reference was not published. The identities of the other members of this operation centre are not known. Based on its website it appears to be that the task of the centre is to management of the quarantine process. A Presidential Task Force was appointed on 26 March and it was gazetted (No. 2168/8), members were nominated, and terms of reference was identified. The focus of the Task Force was management of food supply and various administration work. It has nothing to do with the management of the virus- related issues. It was heard that there is a technical task force, but its members are not known.
In its operations the Task Force has decided to close  the economic centres, which affected the farmers and hampered the delivery of vegetables throughout the island. The economy is at stand still. Daily wage earners are in dire consequences. The operation is like that of a war of which the sole target is to eradicate the virus as early as possible. These are good intentions but there are side effects as well. Many countries in the world are very conscious of their economies as well. They try to manage carefully the pandemic and the economy. 
It appears to be that the Epidemiologists who are trained to handle epidemics are not in the forefront and they are not in control. The best example is that on 11 April it was reported that  it was made mandatory to use face masks  when people are  going out but in the website of the Epidemiology Unit of the Ministry of Health it is clearly states that it is not necessary.
Having delayed the starting of the process of combating the virus until the nominations were concluded, the President, after issuing the letter to the Chairman stating that the elections can be held by 28 May, now started giving signals that the situation will be eased  by that time. On April 11 it was decided that the second school term will be started on 11 May. On April 12 it was decided that the Universities will be re-open for staff on 4 May, for final year students on 11 May and for all students on 18 May. What is the basis of fixing these dates? What is the contribution of Epidemiologists on deciding of the dates? It appears to be that these days are fixed to be in line with the possible election date indicated to the Chairman of the NEC, 28 May.
This is a dangerous game indeed. Every day there are new patients reported. By the time of this article is written total number of patients has gone up to 210. The World Health Organization has clearly said that the relaxation of the measures taken to combat the virus should be slowed down by stages and they warn that ad hoc relaxations would lead to another pandemic. It would be too early to set the deadlines now. However, it would be great if the deadlines can be achieved.
An election cannot be held under these circumstances and in this type of rush. 
The argument of the Secretary that the people should be allowed to use their franchise, was brought in during the time when the former President dissolved the parliament illegally in October 2018 as well. Supreme Court held that adhering to the constitution was the best way to maintain the sovereignty. Many writers illustrated provisions of the constitution to re-convene the parliament in this grave hour and the dire necessity of doing so. If the parliament is convened the problem raised by the Chairman of the NEC may be solved based on the legal provisions. In addition to that several other problems such as overseeing the process of combatting the virus and approving necessary finances to run the country and to combat the virus, can be solved.
On 20 February, at the last date of the parliament sessions Leader of the House wanted to bring a motion to get the approval of government expenditure and to raise the borrowing limit. According to the Leader of the Opposition, at the Party Leaders meeting opposition supported to approve the expenditure and opposed to raise the borrowing limit. It was recorded in Hansard. However, the Leader of the House withdrew the whole motion and he proposed that the next session of the parliament would be 3 March. On 2 March the parliament was dissolved. The President in his address to the nation mentioned that the government was not able to get the expenses approved in the parliament and hence he has dissolved it.
 In the last paragraph of the response the Secretary stated that the referring the matter to the Supreme Court does not arise. 
The Chairman of the NEC has written to the President, I believe, under Article 33 (1) (d) which is as follows.
“It shall be the duty of the President to, on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.”
Therefore, we are back to square one.
As discussed, I believe that the entire operation handling Covid-19 is interwoven with the holding of the election. It is the duty of the President and the government to find a way out to this constitutional deadlock rather than trying to hold the elections amid Covid-19 crisis.  
It is the duty of the opposition political leaders to give an assurance to the government that they will support to pass the necessary laws and approvals needed in this grave hour if the parliament is summoned and to support to solve the constitutional deadlock.
Published in Colombo Telegraph on 13 April 2020

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