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Power of the Speaker in the midst of a constitutional war

26 November 2018 12:12 am - 0     - {{hitsCtrl.values.hits}}

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ast month marked an unprecedented constitutional war between the Legislature and the Executive branches of Sri Lanka. It was a war of interpretation of the Constitution on one hand, in which many layers of the society -from labourer to university professors - started to quote constitutional articles to justify their position on legality or illegality of appointment of Mahinda Rajapakse as the Prime Minister, and that of the sudden dissolution of the Parliament. 
The whole debate went on, in a context where even a schoolchild would profess to the fact that power of the President was curtailed by the 19th Amendment, preventing him removing the Prime Minister at his will, and preventing him dissolving the parliament before a period of four and-a-half years (which was earlier a one year period). Some of the so-called experts professed that the President could sack the Prime Minister anytime, appoint anyone and dissolve the Parliament anytime as he wished, even after the 19th Amendment. This was simply the summary of the debate.


In the aftermath, we saw the decision of the Supreme Court issuing an interim order suspending the operation of the Gazette notification issued by the President, which intended to dissolve the Parliament before the fixed period. Unusual events commencing from October 26 had thus created a tension among all three branches of the state, but the events after the Supreme Court decision marked a serious battle between the Legislature and the Executive branches. In this struggle for power and in the midst of this constitutional war, the last remnants of political norms and ethics of the country evaporated into thin air.
Our system of democratic governance was introduced by the British, demolishing the feudal ruling system led by a monarch, and introducing a ruling system based on a constitution. Such transition occurred in Europe following various struggles that emerged from within the public against the monarchy. In contrast, there were records of popular demands from the people in Sri Lanka soon after removal of the monarchy, and such aspirations for a rule of a king (not a rule of law) are still emerging now and then. Despite these regressive aspirations, constitutional governance and democracy prevailed, facing many events which tested strength of democratic institutions of the country. The events occurred during the past few weeks could be considered most serious, bringing the country to the edge of anarchy and lawlessness.


The writer does not believe that democracy is the best way of governance, yet it is, for sure, better than anarchy, monarchy or law of the jungle. 
Those who aspire for all three above at the same time, were seen in the Parliament last week, throwing chili-powder liquids, assaulting policemen, disturbing parliamentary proceedings and damaging public property in the house, while the entire world was observing them on the television screen.
When the Speaker accepted a no-confidence motion against the newly appointed Prime Minister and the new government, and decided to go for a vote, the power of the Speaker suddenly emerged as a game changing factor. 
Those who forgot the supremacy of the constitutional provisions had this time appeared to have forgotten the supremacy of the Parliament itself. Amidst this constitutional war, a new debate appeared among the general public. What is supreme- the Parliament or the President? While the judiciary had put a pause on a gazette notice of the President, the Parliament had passed a No-Confidence Motion against the Prime Minister and the Government appointed by the President. 
The Executive President, who was considered to possess all powers except the ability to convert a man into a woman, was suddenly found being controlled by the two other branches of the state. Some said Speaker could not defy the President while certain others desperately questioned if that judiciary could review the decisions of the Speaker.

 

"The conflict between the decisions of the Executive President and those of the Parliament signified a constitutional crisis and it has now resulted in a political, economic and social crisis"


A similar debate emerged during the time of late Speaker Anura Bandaranaike when the Parliament appointed a Select Committee to inquire into a complaint on the conduct of former Chief Justice Sarath N. Silva, and the Supreme Court issued an interim order to prevent proceedings of the Select Committee. 
The ruling of Speaker Anura Bandaranaike given on June 20, 2001 has now become a precedent to say that the judiciary in our country could not control the proceeding of the Parliament. On the contrary, the Parliament has the power under the Constitution to impeach and remove the President and the Judges of the Superior courts.
The conflict between the decisions of the Executive President and those of the Parliament signified a constitutional crisis and it has now resulted in a political, economic and social crisis. The root of this abnormality runs back to the introduction of executive presidency by the present Constitution, which has continuously been subject to criticisms since 1978 up to date. 


The post of executive president is not a component of Westminster model of government. It is an abnormal addendum to Westminster system, which we see as the root cause of the present political crisis. 
While Westminster system relies on democracy and supremacy of legislature consisting of representatives elected by the people, an Executive President is also elected by popular vote. 
President is a single individual elected by the people, while the Parliament consists of 196 members again directly elected by the people, plus 29 members representing the proportionate number of votes the parties have received.
When the post of executive president was adopted by 1978 constitution, several immunities were assigned to that post, indicating that actions of the president could not be questioned in any court. Subsequent judicial judgments ruled that unlawful actions of the President could be reversed by the judiciary although any judicial action could not be taken directly against the President. The 19th Amendment also curtailed some part of this immunity.

 

"In this struggle for power and the in the midst of this constitutional war, the last remnants of political norms and ethics of the country evaporated into thin air"

 

Just as the President cannot remove the judges of the Superior courts,he could not remove the Speaker or the members of the house. By the 19th Amendment, his power to remove the Prime Minister was also specifically removed. An desperate attempt was made to imply that the President could remove the Prime Minister anytime, stating that if one could appoint someone in some post, he also possess the power to remove the same person from the post. If this argument is adopted, this could mean that the President has the power to remove Supreme Court Judges as well, because he appoints them. Therefore, it is understood that it is the powers of the President which has been limited and curtailed over the time;not the power of the house or that of the Speaker.


After the no-confidence motion was passed in the Parliament and the same was announced by the Speaker, the President was seen instructing to pass the no-confidence motion calling a vote by name. The no-confidence motion was first passed taking a vote by voice. Under the present constitution, the President can in no way direct the Speaker in conducting the business of the Parliament. It is also against the rule of separation of powers. Proceedings of the Parliament is ruled by the members themselves, headed by the Speaker. The Speaker on Nov. 16 called for a fresh vote again by voice. The Speaker seemed to follow the Anura Bandaranaike style, clearly signifying that the President cannot control way of the affairs of the House.


The debate thereafter largely focused on Standing Orders and the validity of the way proceedings were conducted by the Speaker, since the process of the no-confidence motion did not follow the regular steps. Standing orders were suspended by majority agreement, permitting the JVP leader to place the no-confidence motion and paving the way to call for a vote by the Speaker on the same day. Those who claim that the process did not follow standing orders seem to have ignored two points. (1) Same Standing orders permit the house to suspend regular procedure by majority agreement of the house. (2) Mode of taking a vote is to be decided by the Speaker depending on the situation, and such decisions could not be interfered by the President nor by the judiciary.
It was subsequently claimed that the power to appoint a Prime Minister is exclusively with the President. This may be true, but the fact that the Parliament could sake the government and the Prime Minister is also equally true. The Speaker did not in any way appointed a new Prime Minister. He has simply informed the president that the Prime Minister he had appointed a few days ago had lost at the no-confidence motion.


Apart from constitutional separation of powers, the Parliament (including the Speaker) is also fortified by the Parliament (Powers and Privileges) Act of 1953, of which section 3 stated that:
“There shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament”. All the grievances raised subsequent to passing of no-confidence motion indicate that those who masterminded the political transition in the midnight of October 26 did not foresee the power of the Speaker in handling the resulting political conditions.
On a different note, it is interesting to observe the way those who often preach of western conspiracies have now resorted to complain to western diplomats and the UN against the conduct of the Speaker.

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