Time for constitutional exceptionalism?

 President Gotabaya Rajapaksa

• Necessity calls for discretionary power

It is impossible to foresee and so by laws provide for all 

accidents and  necessities that may concern the 

public… therefore there is a latitude left for the Executive Power to do many things of choice which the laws do not prescribe – Jurist Carl Schmitt, 

John Dunn

By Legal Eye

Think about it. By a Proclamation dated 2 March, published in the Gazette Extraordinary No. 2165/, the President dissolved Parliament. The Proclamation specifies the period for nominations; 25 April as the date for election of Members of Parliament; 14 May as the date on which the new Parliament shall meet.

The new Parliament is mandatorily required to meet not later than three months after the date of the said Proclamation, i.e. 2 June. Consequently, nominations were accepted by the Elections Commission and that process has been completed. 

In terms of Sec. 24 (1) of the Parliamentary Elections Act (hereinafter referred to as ‘the Act’), the Elections Commission is required to proceed with the publication of a Notice in the Gazette specifying the matters set out in section 24 (1) (a), (b), (c) and (d). Accordingly the Elections Commission published a notice in the gazette specifying inter- alia the date of the poll, as per the Proclamation. 

In view of the present pandemic, the Election Commission has informed the President that the poll cannot be held on 25 April. It is apparent that this communication has been made in terms of the provisions in Section 24 (3) of the Parliamentary Elections Act. It must be noted however that the Elections Commission drawing in aid the same provision may by Order published in the Gazette appoint another day for the taking of such poll, which date shall not be earlier than the 14th day after the publication of such Order in the Gazette. 

It is observed that Section 24 (3) does not prescribed a time within which a poll should be taken. It leaves it to common sense. It is observed that the Election Commission has not to date declared ‘a new date’ for taking of the poll as required law. 

Election Commission’s function

It is observed that in the event the Election Commission specifies another date for taking of the poll, the President may be required to issue a subsequent Proclamation in terms of Article 70 (5) (c) of the Constitution, varying the date fixed for the meeting of Parliament, subject however to the condition that the date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the original Proclamation. In other words the new date shall not be later than 2 June.

On a purposive reading of Sec. 24 (3) of the Act with Article 70 (5) (c) of the Constitution, it is clear that the Elections Commission must make every endeavour to appoint another day for the taking of such poll at the earliest, to enable summon the meeting of the new Parliament before 2 June.

The rationale underlying this requirement finds harmony with the provisions of Article 70 (5) (c ) of the Constitution, which provides for a subsequent Proclamation which enables the variation of the date for the meeting of the new Parliament. 

It must be appreciated that once the Proclamation declares the date for the poll and the date for the meeting of the new Parliament, the administrative/executive burden of conducting the poll is essentially a function of the Election Commission, which is mandated to take the poll in terms of the procedures established by law. 

It must also be appreciated that the Election Commission cannot derogate from this legal obligation for the reason that it is only on the completion of a process conducted by the Commission that will enable the meeting of the new Parliament. As such it is a process which the Election Commission and the Commission alone is mandated by law to execute. 

It is not difficult to see, and perhaps common sense, that the President has no role to play in the conduct of an election per se, save for the powers vested in the President to take all such steps in the ‘Public Good’ as envisaged in the Constitution and the express power given in the Parliamentary Elections Act to ensure that the Constitution is respected and upheld by appropriate measures to protect the sovereign rights of the people which include the inalienable right to franchise. 

Consequences of another day

It may also be prudent to consider a scenario where the Election Commission appoints another day for taking of such poll after 2 June; what consequences would flow thereby. It would appear that in such an event the President would be lawfully entitled to issue a further subsequent Proclamation in the nature of the earlier Proclamation under Sec 70(5)(c), varying the date fixed for the meeting of the new Parliament to a later date which accommodates the day appointed by the EC for the taking of such poll drawing in aid the doctrine of necessity or of Constitutional Exceptionalism which would be adverted to later. Public sentiment must respected; the EC must display a mature approach by setting about its obligations of appointing another day in consultation with the President who will be required to vary the date of the meeting of the new Parliament accordingly. 

It might be also useful to draw in aid the provision in section 113 of the Act, which provides that if at any time after the President has fixed a date for the election, if it is shown to his satisfaction that in any electoral District owing to any cause whatsoever no Election has been held in pursuance of such Order, the President may at any time by notice in the Gazette issue another Order that an Election shall be held in that District. 

The rationale underlying this section goes to support the position that the President enjoys an overarching power to ensure compliance with the constitutional process; that an Election shall be held as proclaimed. The Proclamation has to be mandatorily obeyed. Matters concerning the method and or mechanics of compliance is something secondary that can easily form the basis for consultation and discussion. There is no requirement nor space for confrontation nor for one-upmanship at a critical juncture when it means survival of, not only our democratic structure but ourselves. 

It would suffice to note that this rationale can be extended to all or any of the districts by applying the rules of interpretation that when a reference is made in singular form it shall include the plural and vice versa. This rule of interpretation enables a purposive meaning to be given to Section 24(3) and Sec. 113 of the Act. 

It is also a rule a salutary rule of prudence that any departure from the ordinary/normal procedure as prescribed by law must be of a minimal nature that is sufficient to support, sustain and preserve the higher objectives of democratic Rule; the measures must be no more than to supply the constitutional lacuna; a measure to get over the constitutional hiatus. 

Doctrine of Necessity or Constitutional Exceptionalism

Think about it again. Quo Vadis, where are we going? one might ask. Be assured, we do not need to spark a rebellion as Marcus the Roman General did, but take cognisance of the Doctrine of Necessity or Constitutional Exceptionalism. Intrinsically the law does not compel one to do the impossible. 

The question then that begs an answer is as to what role the President is required to play when placed in this contingency. Yes, the President has to simply wait for the results of the poll to convene the meeting of the new Parliament. It’s one of the luxuries a semi-presidential constitutional structure of government offers its President who is the Head of State, Head of Cabinet and Commander-in-Chief of the Armed Forces. 

It must be readily conceded that the process of taking a poll at an election and the publication of the names of the members so elected is inter-alia a statuary obligation of the Election Commission as decreed by a Presidential Proclamation made in terms of the supreme law of the Republic. 

The Doctrine of Necessity is therefore drawn in aid, as it provides a basis upon which pragmatic steps may be taken temporarily in the ‘public good in extraordinary times’. It might be of interest to note that in the ordinary course, the doctrine offers immunity to a person to engage in any act or activity without incurring any legal sanctions, where such act or action would have been for the ‘public good’; to prevent greater harm. This Doctrine has survived the ages and continues to find accommodation in contemporary jurisprudence. 

The temporary departure for compelling , exceptional reasons from the rigid application of the provisions of the Constitution as referred to above has also been accommodated and well-entrenched in the principle of Constitutional Exceptionalism as referred to above. Many academics do not doubt the need for a prerogative power (which is not be understood in the context of a Monarchy) to be vested in the Executive. What then is the rationale underlying the concept of modern Constitutional Exceptionalism.

“Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands”. Since “the end of government being the preservation of all,” necessity calls for discretionary power – a “reservoir of authority,” in John Dunn’s phrase – capable of augmenting or supplanting existing rules (and rule-based authority structures) in cases of need. As it is impossible “to foresee, and so by laws provide for, all accidents and necessities that may concern the public … therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe”. 

On occasion – where the laws are silent, or where to follow the letter of the law would lead to injustice, or where the good of the people requires it – it is entirely legitimate, academics argue, for the executive to go beyond or even against the existing law. Note the expressions ‘laws do not prescribe’, ‘where the laws are silent’, ‘where to follow the letter of the law could lead to injustice’. 

How then do we give life to the law?

How then do we give life to the law? Do we allow common sense to fly out of the window or do we engage in activism, activism of a kind that gives life to the spirit of the law, its soul? We as reasonable and prudent citizens of this nation are sensitive to the fact that we do not need to indulge in jurisprudential gymnastics to understand the principle that the law expects all of us without exception to do what is best or next best having regard to the highest norms of human conduct founded upon democratic values. 

The legal philosopher John Locke took care to distinguish between the Rule of Law and freedom, at least at the margins. Locke opines, “Prerogative (although essentially English law) compensates for the shortcomings of the law without abandoning the principles of legality altogether by allowing the Executive to exercise extra-ordinary powers in accordance with the highest law of all: the good of the people.” 

Prerogative power – defined by Locke as “nothing but the power of doing public good without a rule” – is justified by the dictates of necessity (in its various guises): “it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. That as much as may be, all the members of the society are to be preserved”. 

In conclusion, the constitutionality, unconstitutionality or extra-constitutionality of the Declaration (in the present case; the new proclamation) would largely depend upon the theory of legality of Sovereign action in a state of exception that the President subscribes to. A constitutional hiatus that touches and concerns the basic structure of our Constitution can be described as the legal ‘black hole’ where the actions of the State or the President are essentially unconstrained by law. The President must be given the freedom of navigation in uncharted constitutional space to safely guide the nation through an important constitutional process in extraordinary times. It must be borne in mind that measures employed in a state of exception fall in the ‘no man’s land between public law (which governs the relationship between subject and State) and political fact’. 

Lasting changes

Another assumption made by liberal-democratic theories is that not only is the emergency period thought to be transitional, but the legal and institutional changes too are assumed to be temporary.

Often, however, measures taken by the President as in our case, being the authority which declares the exception, drawing upon the legality from the Constitution, bring about lasting changes to the constitutional structures itself. 

Example: An Indian one, is the Dilution of Article 370 (Temporary provisions for Jammu &Kashmir) – where the doctrine of Constitutional Exceptionalism was resorted to. The doctrines related to Constitutional Exceptionalism and not traditional constitutional law doctrines are to be invoked if the extent of legality of the Declaration was to be judged. 

In this context, the Legal Black Hole theory proffered by academics is of particular interest. The theory argues that unless emergency powers can be circumscribed by law, we are either confronted by an ‘internal realist’ position through which a simulacrum of legality, an image of legality is attached to the action whereas in reality the law is undermined, or by the ‘external realist’ position under which the sovereign’s power cannot be limited by law. The solution however, is a deontological argument which concerns a consideration of the nature of the duty or the obligation “which ignores behavioural outcomes. 

In practice, extra-constitutional measures draw upon their legality from existent constitutions and seek to create parallel (and sometimes unconstitutional) ‘constitutional’ regimes. On the other side of deontology is a consequentialist method of judging the extent of legality. Under the ‘Extra Legal Measures’ model the officials of the Sovereign may find that a strict obedience to legal authority or a particular rule in extraordinary time or unforeseen circumstance may lead to an irrationality. 

The deviation therefore from the rule is justified, but only in that particular instance. The rule itself would continue to apply in all other situations. The ELM model also finds support in that, the state of exception aptly described by the academics ‘a zone of anomie,’ an area lacking in ethical standards where legal determinations are paralysed. The justification offered by Academics is that the same allows for the preservation of constitutional order including its principles and tenets even as going outside the general order be legally wrong. Sri Lanka too has had its own share of the application of this doctrine in the course of its post-independence constitutional journey which we find convenient to relegate to history or consign to the limbo of forgotten things. It’s nothing so new to us. 

Call a spade a spade

In conclusion, the constitutionality, unconstitutionality or extra-constitutionality of ‘an appropriate Proclamation’ would largely depend upon the theory of legality of Sovereign action in a state of exception that the President subscribes to. Some opinions written on the topic, relying on traditional constitutional law doctrines, have fallen into the error of the assumption of liberal-democratic theories of emergency or the use of exceptional powers that laws and amendments made during emergencies or exceptional circumstances can only be temporary. 

The need instead, is to call a spade a spade, and address the role that both political facts and public law equally play in addressing the constitutional hiatus by resorting to the doctrine of Constitutional Exceptionalism. The need may present itself, for the President to consider acting upon this doctrine in the public good by issuing a further Proclamation as envisaged in Article 70(5)(c). It may also be necessary, in the event the Election Commission appoints another day beyond 2 June, that a Proclamation in the nature of a Proclamation envisaged by Article 70(5)(c) be published to accommodate a date for the taking of a poll after 2 June. 

If there is one lesson to be learned, with the compliments of ‘COVID-19,’ it is that the President must do what it takes for the good of the people and cannot be constrained by constitutional niceties in a political document. It is fitting that these few thoughts end with the reminiscence of those famous lines by the poet Walter Scott: “Breathes there the man with soul so dead, Who, never to himself hath said, ‘This is my own, my native land.’”