In the Republic of Sri Lanka, Sovereignty is in the people and it is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. Vide. Article 3 of the Constitution.
The manner in which these powers are to be exercised and enjoyed is given in Article 4 of the Constitution.
Accordingly, legislative power is exercised by Parliament (Article 4(a)) while the Executive power is exercised by the President (Article 4(b)). These are powers of the people given in trust to the Legislature and the Executive (President).
The reasons for these are that the people as an entire body cannot, on their own, carry out every executive and legislative function.
A Representative Democracy is therefore, the method by which the people of this country have chosen to exercise these powers. By exercising our franchise we can demonstrate whether or not we endorse what our politicians do.
The removal of the Prime Minister and the appointment of a new Prime Minister is essentially a political project just as much as the 19th amendment was. Nobody should have any illusions on this.
However, when a public debate engaged by Citizens of all strata, confusion is compounded with no conclusion and causes further polarization of an already polarized society. This is particularly so, if we as citizens do not understand who is given what function under our Constitution.
Without attempting to understand the current events in our Country from the standpoint of a political project, some in our society seem to have entered into a never-ending debate, of the legality or otherwise, of the events that unfolded during the past few days and are continuing to be unfolded.
In the Constitution, we have agreed by Article 125(1) that any dispute regarding its interpretation should be resolved by the Supreme Court and certainly not provided for a resolution by public debate.
Thus, whether the acts of the politicians are legally right or wrong is exclusively within the purview of the Supreme Court as Article 125(1) states as follows:
“The Supreme Court shall have the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution…”
However, whether the actions of the politicians are acceptable as morally correct or otherwise, is essentially within our right and can only be subjected to a test at an election.
Dr. Jayampathy Wickremeratne, PC, presently, Member of Parliament of the United National Party, (who is widely acclaimed as a key architect of the 19th Amendment) has himself, with several others, successfully argued in the case reported in 2002 (3) SLR 85 that the sovereignty of the people including the franchise is inalienable.
In the said Judgment, from pages 90-101, the rationale for not allowing the reduction of the power of the President to dissolve Parliament is clearly set out as being for the benefit of the people whose sovereignty is inalienable.
Thus obviously, Dr. Wickremeratne, PC, in his current incarnation has been able to persuade the legislature to enshrine the principle which he stood for in his forthright understanding of the scheme of our Constitution by introducing in Article 33(2)(c) in the most unambiguous form, the President’s right to prorogue and dissolve Parliament at his discretion.
Article 33(2)(c) after the 19th Amendment reads as follows:
“In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written Law, the President shall have the power to summon, prorogue and dissolve Parliament”
In view of this clear provision contained in Article 33(2)(c), the other power or function of dissolution assigned by Article 70(1) as amended by the 19th Amendment, must be understood as the method of dissolving Parliament when the Legislature wishes it to be dissolved by making a request to the President.
Thus the right of the President to dissolve upon a request by Parliament is by Proclamation (in Article 70 (1)) , while the unfettered power at the sole discretion of the President to dissolve Parliament under Article 33(2)(c) , would be by way of a simple declaration made by him that Parliament is dissolved.
The wisdom and the intention of the legislature is clearly demonstrated by the new Article 33 (2) ( c ). This power in the President is a totally new and a separate power vested in him which is totally absent in the Constitution prior to the 19th Amendment which is obviously a well thought out and deliberate act on the part of the framers of the amendment.
This is obviously meant to be exercised to prevent instability in the Country such as in a situation which has arisen where there is a claim by the Speaker of Parliament that there is an ambiguity on the state of affairs.
The people of this country would be ever thankful to the collective wisdom of the framers of the 19th Amendment, since they have left open a window of opportunity in favour of the direct exercise of Sovereignty despite the entire amendment being a chaotic compilation.
It is hoped that we do not start another round of debate on whether it is good collective Karma of the Nation or Divine providence that has given us this opportunity.
If the President is certain that his decision of the removal of the Prime Minister would be accepted as morally correct, there is no reason why he should shy away from allowing the people to exercise their franchise by dissolving Parliament in the aforesaid manner and calling for elections.
In the event there is any dispute as to the legality of the removal of the Prime Minister, such has to be decided by the Supreme Court as aforesaid while the morality of it can be decided by the people.
Just as much as a justification was found to bring the 19th Amendment to suit the political project of the President at that time, he has found an interpretation to suit his political project at the present moment.
No one should be surprised or disappointed by his actions. What other way would a politician act other than for self interest?
What the President did, perhaps, for self interest, on January 8th 2015 was endorsed by a majority of the people.
Today, one has two Constitutional options. One is to seek redress from Court if one does not agree on the legality. The other is to show displeasure if one does not agree on the morality when exercising franchise, if given an opportunity by the President by dissolving Parliament.
Those who do not agree on the actions of the President must not shy away from the first option and must also press for dissolution of Parliament to exercise the second option.
Instead of doing either, resorting to arguments in the public domain on the Law, merely creates a cacophony which results in social discord.
Therefore, let us end this debate and urge those who have issues on the Law to go to the Supreme Court and for the President to dissolve Parliament to exercise our franchise displaying that we actually care for our Sovereignty.