Prime Minister Mahinda Rajapaksa in a special statement today said that ‘only way to restore stability to a destabilized democracy will be through a general election.’
“According to our Constitution, sovereignty is vested in the people and not in Parliament. The manner in which the people exercise their sovereignty is through the franchise. I invite all those who respect democracy to give careful thought to these matters,” the Prime Minister said.
Full statement is as follows:
“It is only in Sri Lanka that you will find political parties agitating against the holding of a general election that has already been declared. In the gazette notification dated 09 November 2018 issued by the President in accordance with the provisions of our Constitution and the Parliamentary Elections Act, dates had been fixed to call for nominations from the 19th to the 26th November, to hold the poll on the 5th January 2019, and for the new Parliament to meet for the first time on the 17th January. If things had gone accordingly, stability would soon have been restored to this country.
Last year, in November 2017, there was the danger of the local government elections being postponed indefinitely because certain individuals had petitioned the Court of Appeal against the holding of the local government elections citing delimitation issues. However when the Chairman of the Elections Commission declared that he will proceed to hold elections at least in respect of the local government institutions that were not subject to litigation, the then government reluctantly fell in line and agreed to hold elections. With that the petitioners who had gone before the Court of Appeal quietly withdrew their petitions. It was quite clear in that instance, that the court procedure was being misused for a political purpose.
Today, six of the nine provinces in the country do not have functioning provincial councils. The previous government avoided holding elections to the provincial councils for more than one year. We held the Eastern Provincial Council election in 2008 even before the war had ended, immediately after clearing the province of the LTTE. Once the de-mining of the Vanni was complete, we held provincial council elections in the Northern Province as well in 2013. Today, without any war in the country, both those provinces do not have provincial councils. The previous government put off provincial council elections indefinitely by deliberately refraining from fulfilling the conditions relating to the delimitation of constituencies in Act No. 17 of 2017 which was rushed through Parliament last year just days before the Sabaragamuwa, North Central and Eastern Provincial Councils were to stand dissolved.
I am placing on record this explanation because the UNP and its affiliated political parties have been making misleading statements from the political platform with a view to deceiving the general public. From the time of our first Parliament, elections were called early whenever necessary to overcome situations of political turbulence. In 1952, when the then Prime Minister D.S. Senanayake died, a division emerged within the UNP regarding the succession. Even though the effective number two in the party was Sir John Kotelawala, the then Governor General Lord Soulbury invited Dudley Senanayake to be the Prime Minister. Within days of swearing in as Prime Minister, Dudley Senanayake summoned a general election and obtained a fresh people’s mandate to contain the divisions within the ruling party.
In 1959 after the assassination of S.W.R.D. Bandaranaike, W. Dahanayake became Prime Minister. When rifts emerged within his Cabinet, he too called a general election. The Governor General’s power to dissolve Parliament was provided for in Article 15 of the 1948 Constitution. Even though Parliamentary conventions like dissolving parliament when the statement of government policy is rejected or when a government loses the budget were not expressly stated in the 1948 Constitution, those conventions applied in Sri Lanka because we closely followed the British system of Parliamentary government at that time.
Provisions relating to the President’s power to dissolve Parliament in our first Republican Constitution of 1972 were found in Article 21. The convention of dissolving Parliament if the statement of government policy was rejected, or a budget was defeated found mention in Article 99 of that Constitution. With regard to the second Republican Constitution of 1978, the President’s power to dissolve Parliament and the convention of dissolving Parliament in the event of a rejection of the statement of government policy or the budget, found mention in Article 70(1). I have no intention of dealing with any matter that is before courts. All these are matters that are being discussed in the media, the social media and in society in general.
The UNP and its allies claim that the 19th Amendment repealed and replaced the old Article 70(1) of the 1978 Constitution, and that according to the new article 70(1), the President cannot dissolve Parliament until the lapse of four and a half years. They claim that an early dissolution will be possible only if Parliament passes a resolution by a two thirds majority requesting the President to dissolve Parliament. All the provisions relating to the dissolution of Parliament in the 1978 Constitution, were found in the old article 70(1) before the 19th Amendment. If those provisions have been abolished, then there are no provisions in the present Constitution to dissolve Parliament in the event of a government losing a vote of no confidence, the vote on the budget or the statement of government policy.
Such restrictions are completely contrary to the Parliamentary tradition. Most countries with a Parliamentary form of government have ceremonial heads of state. Even in such countries, the head of state can exercise his discretion in dissolving Parliament. The British constitutional authority A.V. Dicey has said that if the Crown is of the view that the opinion of the public is different to that of the majority in Parliament, the Crown has the discretion to dissolve Parliament and summon a general election. In 1975, the Governor General of Australia sacked Prime Minister Gough Whitlam and called a general election entirely at his own discretion.
Dr B.R. Ambedkar, the founder of the Indian Constitution has said that the President of India can exercise his discretion when deciding whether to dissolve Parliament. The Governors of the Indian states, who are representatives of the President, have exercised that discretion from the very beginning. In 1970, President V.V. Giri exercised his discretion in dissolving Parliament despite the protests of the opposition which had a majority in Parliament. In 1979, President Sanjiva Reddy exercised his discretion and dissolved Parliament due to a situation of near anarchy in the Lower House.
That was in countries with ceremonial heads of state. However the Sri Lankan head of state is an Executive President directly elected by the people. It has been clearly stated in the Supreme Court determination on the 19th Amendment that the power that the sovereign people have vested in the President cannot be removed without a two thirds majority in Parliament and a referendum. Even though it is claimed that the President’s power to dissolve parliament that had been provided for in the old Article 70(1) have been removed, what has actually happened is that those provisions have been taken to another part of the Constitution.
While amending the old Article 70(1), the 19th Amendment also introduced a new subsection (2)(c) to Article 33 of the Constitution. What this new provision says is that ‘in addition to the powers, expressly assigned to the President by the Constitution or other written law, the President shall have the power…to summon, prorogue and dissolve Parliament’. The new provision that has been introduced to the Constitution in the form of article 33(2)(c) has not been made subject to Article 70(1) as amended by the 19th Amendment either.
That is obviously why the 2015 Supreme Court determination on the 19th Amendment did not say that the amendment made to the old article 70(1) had reduced the President’s powers to dissolve Parliament. If the purpose was to reduce the President’s powers, an amendment would have been made only to Article 70(1). Legal experts are of the opinion that the reason why the President’s powers to dissolve parliament which were provided for in the old Article 70(1) have been reintroduced to the Constitution in the form of Article 33(2)(c) is because the President’s power in that regard cannot be taken away except through a referendum.
The 19th Amendment shifted other provisions of the Constitution from one place to another in a similar manner. The old article 42 which declared that the President was responsible to Parliament in the execution of his duties was repealed and the same provision without any change in the wording, was reintroduced as Article 33A by the 19th Amendment. Only the drafters of the 19th Amendment will know why that was done. But the end result is that the President continues to be responsible to Parliament under the 19th Amendment just as he was before the 19th Amendment was introduced. The same applies when a power that the President had under the old Article 70(1) is reintroduced to the Constitution in the form of Article 33(2)(c).
After the 19th Amendment, Parliamentary conventions have been preserved in our Constitution through Article 33(2)(c). If we ignore that Article and accept only Article 70(1) as amended by the 19th Amendment, then we will be faced with a situation where there is absolutely no provision in the Constitution to dissolve Parliament in the event the government is defeated at a vote on the budget, the statement of government policy or a motion of no confidence is passed against a government. Such a situation is completely contrary to Parliamentary tradition. If even the ceremonial heads of state in countries with parliamentary forms of government can dissolve Parliament and call for fresh elections at their discretion when the circumstances so require, how logical is it to say that the President of Sri Lanka who is vested with the executive power of the state on behalf of the sovereign people cannot dissolve Parliament no matter what happens in the country?
How can it be said that the President does not have the power to dissolve Parliament when Article 33(2)(c) was specifically introduced to the Constitution by the 19th Amendment? It took only 56 votes in Parliament to pass into law Act No. 5 of 2018 which put in place a legal framework to hand over our war heroes to foreign courts. How then can one argue that you need 150 votes in Parliament to be able to pave the way for the sovereign people to exercise their franchise? I was recently given a copy of a report published by an inter-governmental organisation called the ‘International Institute for Democracy and Electoral Assistance’. The member states of this organisation include Germany, Australia, Canada, Switzerland and also India and Japan.
According to that report, there are only two countries that require a two thirds majority to dissolve Parliament – Kosovo and Lithuania. However, even in those countries the head of state can dissolve parliament if a no confidence motion against the government is adopted or if the statement of government policy is rejected. The only country mentioned therein which has a Parliament that cannot be dissolved under any circumstances until the end of its term, is Norway. However the situation in Norway is very different to ours. The population of Norway is smaller than that or our Western Province. Furthermore, that country is a constitutional monarchy.
Even if a government is defeated in Parliament, it has to continue in office until a new government is appointed by the King. When the King in Council presents the annual budget to Parliament, it will be debated but there is no tradition of defeating budgets in that country. Most of the time, Norway has had minority governments that do not have a majority in Parliament. That is the situation at this moment as well. It should be clear that what works in Norway will not work in Sri Lanka.
The manner in which the French Constitution evolved is also relevant to this discussion. The Constitution that France had before 1940 had made it virtually impossible to dissolve Parliament. This led to chronically unstable governments being formed in France during those years. In 1940, Hitler invaded France. After being liberated from the German occupation, France promulgated a new Constitution in 1946 which relaxed the provisions relating to the dissolution of Parliament and allowed the calling of fresh elections in the event where two no confidence motions are passed against a government within a period of 18 months. However, because even that did not suffice to ensure stable governments, the present Constitution of France which was adopted in 1958 has given the President the power to dissolve Parliament at his discretion.
We must learn from those experiences. Since the dissolution of Parliament and the holding of fresh elections will have implications for the person ordering such actions as well, no head of state will take such a decision lightly. Such a decision will be made only in serious situations. The only way to restore stability to a destabilized democracy will be through a general election. According to our Constitution, sovereignty is vested in the people and not in Parliament. The manner in which the people exercise their sovereignty is through the franchise. I invite all those who respect democracy to give careful thought to these matters.”
Max Sunday, 2 December 2018 20:33
Very true sir. But the foreign funded.NGOs', TNA backed UNP and their left ally JVP will never agree to go for elections.
Reply : 201 41
Elector Monday, 3 December 2018 08:54
What rubbish!! They all want ELECTIONS in PARLIAMENT FIRST OF ALL!!!!
Reply : 4 41
Hemantha Monday, 3 December 2018 10:33
Agreed, but should be under legitimate Government and not under crooks.
Reply : 3 27
Saradiel Sunday, 2 December 2018 20:37
Who is responsible for this pathetic situation? Who is benefiting from it? who is in power without a majority in the parliament? Finally, no we do not want an election under an illegal government. Reverse the clock to 26OCT, then we are ready for the election.
Reply : 20 184
Samson Sunday, 2 December 2018 20:45
Who destabilised the democracy?? There is no stability because the elected representatives have no faith in you.First have a presidential which is due next year. In fact both can be held together to save public funds.
Reply : 7 147
Gamini Sunday, 2 December 2018 20:45
Yea that is the last hope you have at this point. Also do not refer to other countries. Sri Lanka has to work within its own constitution. In the US often the president works with the Speaker from the opposition and the majority congress (equivalent of the parliament) from the opposite party It operates fine with no fist fights and bible throwing. Refer to the US too then.
Reply : 7 102
Sunil Sunday, 2 December 2018 20:47
Mr. Mahinda country do not have enough resources (funds) to waste for useless election right now. Secondly you're not the legitimate Primer elected in parliament at the moment. Where the hell this country going?
Reply : 15 128
johan Sunday, 2 December 2018 20:57
People have rejected you and your companions in 2015and have given a fresh mandate to the Parliament for 5 years whereUNP has the majority. It is MS and you both have done allthese evil things to grab power and keep with you for everwhich you both did not expect will turn into such an unsuccessful attempt and put Sri Lanka in disarray
Reply : 11 129
Jessica Sunday, 2 December 2018 21:02
The only solution in my opinion is for you to go home. Period.
Reply : 12 126
raj Sunday, 2 December 2018 21:04
Correction- Illegal PM says " Election only answer"
Reply : 12 113
Countryman Sunday, 2 December 2018 21:05
With your rush for power, an election is a solution, but you will never get so-called 2/3 power in the parliament or elsewhere!. An election will make things more complicated while the current president is still in power!
Reply : 4 88
Megan Sunday, 2 December 2018 21:06
It should be presidential election first.
Reply : 8 96
Unchikun Sunday, 2 December 2018 21:07
Sorry man. You and Gamarala has not read the constitution, specially 19th Amendment, Read it. I am no UNP supporter. You are pushing me to vote for the UNP.
Reply : 8 109
Shane Sunday, 2 December 2018 21:17
Crybaby cry u have no other choice
Reply : 10 85
DN Sunday, 2 December 2018 21:17
Why an election @ this point. 117 MPs are backing UNF and they can form a stable government.The current unnecessary situation is created by MR
Reply : 9 93
Shon Sunday, 2 December 2018 21:18
I don't know why daily mirror still calling this man prime minister, because he is not the prime minister, because parliament 7 times made it clear this man doesn't have any rightful claim for the office of prime minister.
Reply : 13 105
Beeni Monday, 3 December 2018 07:44
Are you addressing the public or the court? Let learned judges resolve the issue. We know this is your style of intimidation.
Reply : 1 17
Gummay Baiyya Monday, 3 December 2018 08:03
A rigged election in your favour which is the usual syle of business will be the answer. If not, be prepared to hang on to bars of a window for the last time.
Reply : 1 16
Bala Monday, 3 December 2018 10:32
An election yes but then not under your caretaker govt. We know how you take care of yourself and party with gilmarts.
Reply : 1 12
Sammy Monday, 3 December 2018 08:20
Then how can he be called Prime Minister now, when there is another one already elected.
Reply : 1 15
Observer Monday, 3 December 2018 08:23
MR must have won sympathy from a lot of his opponentsafter seeing him virtually crying when he was making the speech?
Reply : 1 16
dean Monday, 3 December 2018 08:40
don"t put in to our head to keep election at this time if so with keep both the election
Reply : 1 11
RP Monday, 3 December 2018 08:55
Democracy will be stored once you pack up your bags and go home.Shameless politician indeed!
Reply : 2 15
Lahin Monday, 3 December 2018 09:08
Agree that we should have an election but this is a joke. The problem was created by MR accepting the PM post when he had no majority in parliament. Instead of grabbing power illegally, he should have either proposed and passed a no confidence motion against RW or worked to get a 2/3 rd majority to resolve to dissolve the parliament. MR has put the whole country into a mess and now trying to blame others.
Reply : 3 18
Sohan Monday, 3 December 2018 10:29
Please see https://twitter.com/SumitBisarya/status/1069326172683739138There, Sumit Bisarya of the "International Institute for Democracy and Electoral Assistance" has tweeted that Rajapaksa's reference to their work is COMPLETELY OUT OF CONTEXT.
Reply : 1 7
Sofia Monday, 3 December 2018 11:08
Not only that but his main argument that other countries have not done something we did is wrong in concept. That basis Mrs. B should not have become world's first female PM because no other country had one.
Reply : 1 5
Praba Monday, 3 December 2018 11:33
How ethical is for a prime minister to give opinion on a matter pending at supreme Court
Reply : 1 8
Labby Monday, 3 December 2018 12:01
No. You leaving the Prime Minister's office is the only answer. You have no moral right to be there, you have no legislative right to be there either. If you have any self respect just go.
Reply : 1 7
Sach Monday, 3 December 2018 12:05
The 19th amendment requires a referendum. But Ranil got it through unscrupulously. The qn is how come 19 amendment became a law without a referendum
Reply : 7 1
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