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Playing with the Constitution Continues

12 November 2018 12:03 am - 0     - {{hitsCtrl.values.hits}}

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ast Friday President Maithripala Sirisena dissolved Parliament creating yet another twist in the unfolding political crisis. Despite the protests, a written request by a majority of members of Parliament and requests made by the Speaker to convene parliament, the President went ahead with a clearly undemocratic and unconstitutional move to dissolve Parliament and call for elections. According to critics the last two weeks witnessed repeated violations of the Constitution when Mahinda Rajapaksa was appointed Prime Minister; when the Cabinet was said to be dissolved and a new cabinet appointed; and of late when Parliament was dissolved. The Daily Mirror spoke to some concerned parties in the legal field on their perspectives on the constitutionality of the move to dissolve the Parliament.

 

 

“The unilateral act to dissolve parliament, without first receiving a request approved by two-thirds of the members of parliament, is unconstitutional. Article 33(2)(c) of the Constitution vests in the president the power to dissolve parliament. This general power is then subjected to certain conditions in Article 70, which explicitly states that the president ‘shall not’ dissolve Parliament until ‘the expiration of a period of not less than four years and six months from the date appointed for its first meeting.’ 

 

"A democracy is not defined by elections alone. Even dictators occasionally hold elections. A democracy requires organs of government to remain accountable to the people even between elections"


The only exception to this condition is when two-thirds of the members of parliament request the president to dissolve parliament. This condition is very clear. The 19th Amendment to the Constitution also introduced Article 33A, which states: ‘The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law.’ So the Amendment clearly intended to make the president answerable to parliament when he exercises his powers,” he said. 
“A democracy is not defined by elections alone. Even dictators occasionally hold elections. A democracy requires organs of government to remain accountable to the people even between elections. This accountability is ensured through the constitution. So any major violation of the constitution undermines democracy. For example, if an actor within the executive arm of government unilaterally terminates the legislative arm in violation of the constitution, democracy is fundamentally undermined - not upheld,” he added. 

 

 

Sarath N. Silva said the President has very clear powers under Article 33(2)(c) to dissolve Parliament and that if the process of dissolution emanates from Parliament it has to follow Article 70. “We have inherited the Parliamentary system from the British. The Parliamentary system was introduced in England with a head of State who was the Queen. The head of state is the total repository of power with regard to dissolution of Parliament. Over the years there is a tradition that the head of State dissolves Parliament on the advise of the Prime Minister.


The head of State under our Constitution is the elected President, who is elected by all the people in the country. Under Article 30 of the Constitution the President is the head of State, head of Government, commander-in-chief of the armed forces. There is no one above him. Dissolution of Parliament has always been under the executive power of the President originally under Article 70. In 2002, when Ranil Wickremesinghe was Prime Minister, 19A was introduced. It sought to remove the executive powers of the President to dissolve Parliament. There was to be an amendment to Article 70 to the effect that the President shall exercise that power only upon a resolution passed by a simple majority of Parliament. The Supreme Court held that the power of dissolution is executive power, that it has to be exercised by the President and that it has to be exercised in trust for the people. On that basis it was held that the amendment to Article 70 was dangerous to the sovereignty of the people and that the bill required a referendum. Then the Bill was withdrawn.


The drafters of the current 19A were well aware of this determination of the Supreme Court in 2002. There is a presumption that laws are enacted on the basis of the recent decisions of the Supreme Court. In the current 19A Article 33 was amended. Article 33(2)(c) reads that in addition to the powers conferred by the Constitution or other law the President shall have the power to summon, dissolve and prorogue Parliament. This is really referable to the Supreme Court judgement. Otherwise the 19A would have required a referendum. Article 62 states that unless Parliament is sooner dissolved it will continue for five years. So “sooner dissolved” is also referable to Article 33(2)(c). Then Article 70 under the chapter on Parliamentary proceedings was amended. It says that the Parliament shall not be dissolved unless after four and a half years or a resolution by Parliament with two thirds. On the face of it, this is contrary to the judgement of the Supreme Court. This is why overriding power was given to the President to exercise that power.”

 

 

“Though the President has absolute discretion to summon, prorogue and dissolve Parliament he should do so with good faith. In the present case, he has prorogued and dissolved parliament at his discretion and in the meantime he has switched Prime Ministers and appointed cabinet ministers from Mahinda Rajapaksa’s partyand deemed that Ranil Wickremesinghe’s cabinet members have ceased to function. He has also named a date for general elections. Has he acted in terms of the constitution. The dissolution was not made in good faith for several reasons. Firstly, the present President has a historical background in selecting Prime Ministers because he did not adhere to the proper methodology when appointing Ranil in the first time when D.M. Jayaratne was in office as Prime Minister. Secondly, he appointed MR as the Prime Minister when Ranil has not ceased office, has not resigned or died and continues to assert that he is the Prime Minister. Thirdly, the President prorogued Parliament without consulting the Parliamentarians as to whether they desired a change in the premiership. He selected MR without consulting Parliament. Then he dissolved Parliament which he had the right to do so, provided he acted in good faith. The above matters raises questions as to his good faith. Above acts show that he has acted contrary to the Constitution.


This whole wrongful exercise began with the 19A to the Constitution. Though it was brought by the “good governance” folk it took away the right of people to have a general election for four and a half years. (i.e it would take more than four and a half years because of the nomination and election period set out in the Constitution).
The President should have received a two thirds majority support in the Parliament to avoid the four and a half year absolute prohibition. This is unlikely because of the 5-year pension rule for Parliamentarians. He should have consulted the Supreme Court by obtaining guidance via a question posed to them. The public must have the right to have general elections to choose who should govern them. But the public is prohibited from having elections in terms of the 19A for four and a half years unless he obtains a two thirds majority in Parliament to have an election which is the people’s aspiration. The only way available to the President was the referendum process where he would have received an overwhelming ‘yes’ vote.


More so under the present constitution the President is required to ensure that the Constitution is respected and upheld. In terms of the 19A, the President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution. Therefore if the Parliament was in session, it could have taken action against the President, instead of the UNP going to court, which is a slower process. There is an obvious lack of urgency on the part of the UNP and belatedness, and an unguided MR has lost the opportunity of the majority in Parliament because the people will now hold him responsible for the debacle in Parliament in being greedy for power. The nett result is we might have to face economic problems, lose face, be called a banana republic and become an economic liability to the people.

 

The President has a duty to find out as to whom the Parliamentarians consider most eminent to become the Prime Minister. He closed doors when he asked for a prorogation.  
In the 19A case of Gomin Dayasri v State Counsel Dayasri raised the question as to if it was not possible to have general elections for four and a half years whether it diminishes the fundamental rights of the people. CJ Sripavan said neither a ‘yes’ nor ‘no’ and gave no reasons for either possibility and it let to a downgrading of democracy.”
 

 

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