On 15, the Speaker’s declaration was not consistent with the proposed motion
It is practically impossible to summon parliament during prorogation
the Speaker did not see or hear the seconding of Sumanthiran MP’s motion
ere the No-Confidence Motions (NCMs) passed in Parliament? Was the Government of the Prime Minister dissolved on November 14 or 16? These are questions in the minds of many people.
Let’s read Article 48(2) of the Constitution: “If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45.”
Therefore if a NCM was validly passed the President has two options; either (a) to dissolve the Parliament under Article 70, or (b) to appoint a new Cabinet.
On plain reading of Article 70 we find four basic instances of dissolution of Parliament;
i. After expiration of 4 ½ years from the first meeting (Art 70(1);
ii. On the request of the Parliament on a resolution passed by 2/3rd of its members (Art. 70(1);
iii. At any time while Parliament stands prorogued (subject to Article 70) (Art. 70(3);
iv. Dissolution by virtue of Article 62(2) of the Constitution (Art.70 (5) (b).
"On 14 and 16 November, the opposition wanted to hurriedly pass NCMs against the Government. On both days, M. A. Sumanthiran MP brought motions to suspend the operation of STOs"
Can the President first prorogue the Parliament and then dissolve it at any time under Article 70(3)? Since it is practically impossible to summon parliament during prorogation, can the President dissolve parliament without the sanction of 2/3rd of its members during prorogation? (As prorogation and parliament sittings cannot take place at the same time). Since these are issues now before the Supreme Court, I leave them as they are.
NCMs are brought by the opposition expressing lack of confidence in the Government. The procedure is stated in the Standing Orders. According to Article 74(1) business in the parliament is regulated by resolutions or Standing Orders (STOs). The latest standing orders were adopted and became operative from April 15, 2018.
Notice of motions should be given to the Secretary General of Parliament. STO 27;-.
“27. (1) Notice of questions or motions shall be given in writing, signed by the Member giving the notice and addressed to the Secretary-General. Such notices may be handed over to the Secretary-General at any time when Parliament is sitting or may be sent to or left at the office of the Secretary- General at any time.
(2) The Secretary-General shall, upon receipt of any notice in respect of any question, unless the Speaker rules any question out of order, include in the Order Book for answer on a day not earlier than seven clear days from the day on which the notice was given:
Provided that, any question relating to a matter of urgent public importance may be asked by the Leader of the Opposition or a leader of a recognized political party at the conclusion of questions after due notice has been given to the Minister concerned.
(3) The Secretary-General shall, upon receipt of any notice in respect of any motion, unless the Speaker rules the motion out of order, include in the Order Book, but unless Parliament otherwise orders, no debate thereon shall take place unless five clear days have elapsed since the notice was given. Notwithstanding anything in this paragraph, notices of motions to be moved at the commencement of Public Business shall be included in the Order Paper if received at the Table on the previous Sitting Day.
(4) No debate shall take place on the giving of notice of any matter.
(5) Unless otherwise provided for in these Standing Orders, no debate shall take place except on a motion or order appearing in the Order Paper.
Motions should be considered by the Committee on Parliamentary Business, which is to be appointed at the commencement of every session (STO 114). In terms of STO 115 Committee on Parliamentary Business should consider and decide on the time that should be allocated for the discussion of such Business of Parliament and such other matters as the Speaker, in consultation with the Leader of the House of Parliament, may refer to the Committee.
This committee is essential to regulate the business of the Parliament. The Government party plays a prominent role in this Committee. As at the 18th November, no such committee was appointed.
Proceedings on November 14 and 15
On 14 and 16 November, the opposition wanted to hurriedly pass NCMs against the Government. On both days, M. A. Sumanthiran MP brought motions to suspend the operation of STOs. Such could only be done under STO135;
“135. Any one or more of the Standing Orders may be suspended on a motion made after notice by a majority of Members of Parliament at any meeting to enable any special business to be considered or disposed of:
Provided that, a motion under this Standing Order unless proposed by a Minister of the Cabinet of Ministers shall be decided on by a division and shall be declared lost if it appears that less than twenty Members of Parliament voted in the majority in support of such motion.”
Sumanthiran MP had not given proper notice of the motions (on suspension of STOs). Accordingly they were neither in the Order Book nor the Order paper. Further the motions were silent as to (a) the intended special business to be considered on suspension and (b) the specific STO or STOs to be suspended. These mandatory requirements were not met with. The motions were illegal and void. On both days (14 and 16) the STOs were not suspended when Anura Kumara Dissanayake, MP, was proposing the NCMs to the parliament.
Further on Nov.15, the Speaker did not see or hear the seconding of parliamentarian M. A. Sumanthiran’s motion. The speaker relied on an unknown bystander for information. The Speaker cannot delegate his functions or rely on hearsay evidence.
Therefore NCMs (on both days) should go through the normal procedure. In order to be valid notice of motions should have been given in terms of STO27 and included in the Order Book. No debate thereon could have taken place unless five clear days have elapsed since the notice was given. They should have been presented to the Committee on Parliamentary Business and then entered in the Order Paper. No copies of the motion were given to the members. No debate was held.
STOs 47 and 48 are applicable for voting;
“47. (1) The question shall be put by the Speaker and the votes may be taken by voices, ‘Ayes’ and ‘Noes’, and the result may be declared by the Speaker.
(2) Any Member who is not agreeable with the decision of the Speaker may call for a division for a vote to be taken in any of the following methods as may be determined by the Speaker. In such case the division bells shall be rung for five minutes and thereafter -
(a) a division shall be taken by counting the Members row by row, rising in their places in support or against the motion before the House;
(b) a division shall be taken by the use of the electronic vote recorder. The Members shall press the appropriate button to indicate the decision of such Members within the time period allowed by the Speaker;
(c) a division shall be taken by the Secretary-General asking each Member separately as to how that Member desires to vote and shall record the votes accordingly. The Secretary-General shall first ask the Prime Minister and then the Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and the Deputy Ministers in the respective alphabetical order of their names and then the other Members in the alphabetical order of their names. Any Member may if he wishes to decline to vote state such fact to the Secretary-General. In such case the Secretary-General shall record the name of such Member as having declined to vote.
(3) The Speaker shall announce the numbers of the votes for and against the decision and if the votes are equal the Speaker shall cast a deciding vote. The Speaker shall then declare the result of the division.
"NCMs are brought by the opposition expressing lack of confidence in the Govt. The procedure is stated in the Standing Orders. According to Article 74(1) business in the parliament is regulated by resolutions or Standing Orders (STOs) The latest standing orders were adopted and became operative from April 15, 2018"
48. In the event of confusion or inaccuracy in the course of a division concerning the numbers or names recorded, which cannot otherwise be corrected, the Speaker shall direct the House to proceed to another division immediately thereafter.” On both days voting was to be taken on four occasions; two on motions of suspension of STOs and two on NCMs.
The first method of taking a vote is by “voice”. Only two words acceptable for counting; “Ayes” and “Noes”: (Sinhala “Pakshai” / “Vipakshai”).We heard no such words voicing from the house.
If a member does not agree with the decision of the speaker, a division for a vote should be taken. The Bells should be rung. Vote could be taken in one of the three ways. In terms of STO 135, Vote by voice is not permissible on suspension motions proposed by member who is not a Minister. On both days the Speaker admitted the need to have voting by name. Having decided to take vote on division (by name) he cannot thereafter go backwards and have on voice. Further he did not declare the results; instead said “of the consent of the majority”, which is not provided in the STOs. On 15, the Speaker’s declaration was not consistent with the proposed motion. The Speaker never declared whether the motions were passed or not. All motions ended with a nullity. Therefore NCMs were not passed according to law. There are dozens of other violations of parliamentary procedures and practices which rendered NCMs null and void. Only few are stated here.
On Nov. 14 and 16, STOs were not suspended. Therefore when the no-confidence motions were proposed, STOs stood operative. All motions were moved violating STOs. Voting was defective. The Speaker’s pronouncements were inconsistent with the motions moved. The entire exercise was a nullity. No damage done to the Government. Cabinet was not dissolved. Therefore the President has no ground to act under Article 48(2).