The Resolution To Establish A National Government
Posted on June 3rd, 2016

By Neville Ladduwahetty  FEATURES THE ISLAND – JUNE 1, 2016

May 31, 2016, 7:22 pm

The Hansard of September 3, 2015 under the heading “DETERMINATION UNDER THE CONSTITUTION: NUMBER OF MINISTERS OF NATIONAL GOVERNMENT”, cites the following Resolution:

“Whereas the United National Party which obtained the highest number of seats in Parliament has formed a National Government, Parliament determines in terms of Article 46 (4) of the Constitution of the Democratic Socialist Republic of Sri Lanka that the number of Ministers in the Cabinet of Ministers shall not exceed 48 and the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers shall not exceed 45” (p. 97).

An intense debate followed the tabling of the above resolution. The position of the Government was that according to Article 46 (4) when a “… recognized political party or independent group which obtains the highest number of seats in Parliament forms a National Government”, the Constitution authorizes Parliament to determine the number of Ministers of the Cabinet of Ministers, the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers. And because it is Parliament that makes such a determination a challenge would amount to a beach of Parliamentary privilege (The Island, May 26. 2016).

Judging by the variety of opinions expressed in Parliament the single question that dominated the debate related to the criteria needed to qualify for the formation of a National Government. The opinions of some were that since Article 46 (5) states: “National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties …” a National Government must include all recognized political parties represented in Parliament. Others maintained that since the Article 46 (5) specifically does not state that a National Government means a Government formed together with “all” recognized political parties or the independent groups it could mean one or more recognized political parties. Yet others were insistent that Parliament should seek an opinion from the Supreme Court not only because of the lack of clarity but also because of the implications involved.

NEED for INTERPRETATION

During the debate The Hon. (Dr.) Wijeyadasa Rajapakshe stated:

“When we obtained that interim order, there had been a lengthy debate in the House. After considering all the legal provisions and submissions, the Hon. Anura Bandaranaike delivered a historical, landmark judgment that when it comes to affaires which are to be regulated within the House itself, it is purely a matter to be determined by the Hon. Speaker; it is not a matter within the purview or the jurisdiction of the Supreme Court” (The Hansard, September 3, 2016, p. 110).

“I can remember when there was a Resolution with regard to the impeachment of the former Chief Justice, then Speaker, the Hon. Chamal Rajapaksa also, by following the landmark Ruling of the Hon. Anura Bandaranaike, came to the same conclusion that when it comes to matters within the purview of the House it is to be regulated by the House itself and that the court need not interfere and the court should not interfere” (Ibid).

“Therefore, the question as to whether there has to be any determination from the Supreme Court with regard to the interpretation of the National Government is completely out and there is no relevance, no bearing whatsoever. Therefore, I would humbly like to inform the Hon. Speaker that this Determination is well within the purview of Parliament and it has to be finally determined by the Hon. Speaker” (Ibid).

The Hon (Dr.) Jayampathy Wickramaratne quoting from a section that was included in the Draft version of the 19th Amendment stated: “If at the conclusion of the General Election held immediately after the coming into force of this Article, the recognized political party or the independent group obtaining highest and the recognized political party or the independent group obtaining the second highest number of seats in Parliament agree to form a Government of national unity…”.

However, the concept of a Government of “national unity” in the original draft was evidently abandoned and instead the final version incorporated the concept of a “National Government”. This reflects the difficulties the Drafters of the 19th Amendment had in providing for an arrangement in the event no party secured an outright majority to form a Government. Also, the statement of The Hon. (Dr.) Wijeyadasa Rajapakshe that an interpretation of a National Government from the Supreme Court is “completely out” must mean that such an interpretation would be made by Parliament alone. However, a fact that should not be overlooked is that while this may apply to Governments that function under Parliamentary systems, it does NOT apply in Presidential Systems that operate under provisions of Separation of Powers. This Separation of Powers is the bedrock of Presidential Systems under which Sri Lanka operates.

RELEVANCE of RULINGS by FORMER SPEAKERS

The precedents cited by Hon. (Dr.) Wjeyadasa Rajapakshe relate to Supreme Court interventions in respect of the impeachment of former Chief Justices. Indeed the Supreme Court does not have jurisdiction over issues relating to the conduct of members of the Judiciary. Such tasks are entirely within the domain of Parliament as stated in Article 107 (2) of the 1978 Constitution which states:

“Every such Judge (Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal from 107 (1)) shall hold office during good behavior, and shall not be removed except by an order of the President made after an address of Parliament…”. In the absence of any ambiguity in Article 107 (2) there is no dispute that issues relating to the conduct of senior members of the Judiciary are solely within the purview of Parliament; a fact obvious to ordinary laymen. Under the circumstances, apart from the considerable body of reference material in the 25 page report, one might question whether the ruling really reaches the threshold of being a “historical land mark judgment”.

A further matter of relevance is that the references cited by former Speakers are mostly British opinions that are relevant ONLY in a Parliamentary system of Government. Since under such systems Parliaments are supreme the opinions cited have relevance to Sri Lanka ONLY up to and until the introduction of the 1978 Constitution. The current Constitution is based on Separation of Powers. The COMMONWEALTH PRINCIPLES ON THE ACCOUNTABILITY OF AND THE RELATIONSHIP BETWEEN THE THREE BRANCHES OF GOVERNMENT Section (ii) Parliament and the Judiciary state: “Relations between parliament and the judiciary should be governed by respect for parliament’s primary responsibility for law making on the one hand and or the judiciary’s responsibility for the interpretation and application of the law on the other hand”.

Based on the above principles, the functions of each branch of Government are governed by the provisions in the Constitution. Article 125 unequivocally states that the task of interpreting the Constitution is assigned to the Judiciary, thus: “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to interpretation of the Constitution…”.

Therefore the arguments advanced during the debate and the opinions cited to justify that an interpretation by the Supreme Court is “completely out”, are flawed. On the other hand, it is abundantly clear that an interpretation is needed as to whether the current formation of the Government meets the Constitutional provisions of a “National Government”. The only authority constitutionally authorized to do so is none other than the Supreme Court.

CURRENT FORMATION of the GOVERNMENT

The resolution presented to Parliament states that the “United National Party which obtained the highest number of seats in Parliament has formed a National Government”. This is a self-proclaimed declaration. Therefore, there is a need to explore whether the current formation of the Government meets the test of a “National Government”.

The current Government formation is made up of the UNP with its 106 members who were elected to Parliament together with a section of the UPFA that contested the General Election of August 17, 2015 and secured 95 Parliamentary seats. The rest of the UPFA are in the Joint Opposition. Consequently, the UPFA is divided between those that are with the so called National Government and those of the UPFA that are with the Joint Opposition.

The current formation of the Government is not a “Government of national unity” as referred to by Hon. (Dr.) Jayampathy Wickramaratne because it is not made up of the first and second political parties to secure the highest number of seats at the August 17th Election. Nor, is the current formation a traditional coalition where one or more political parties represented in Parliament come together in their entirety to form a majority Government.

Furthermore, it is not a National Government, whether such a Government is described as one made up of all or some of the political parties represented in Parliament. This is because a National Government is formed when the political party with the highest number of seats joins “with the other recognized political parties” to form a Government. In such a formation, whether one or more recognized political parties join to form a National Government is not the overriding issue. Instead, the more compelling issue is that the entirety of a recognized political party or parties commits to be part of the National Government. However, since the current Government is made up of the 106 members of the UNP together with ONLY a SECTION of a recognized political party, the UPFA, while the rest is with the Joint Opposition, the current formation is not a National Government. Therefore, the current formation is in violation of the constitutional provisions in Article 46 (4) and (5) of the Constitution.

The reason for a section of the UPFA being with the Government with the rest being in the Joint Opposition is because of purported “understandings” reached between the leaderships of the UNP and the UPFA. This has violated the Franchise of the voter who voted for the UPFA. Furthermore, because of the “understanding”, the section of the UPFA identified as the Joint Opposition is unable to function as a legitimate Opposition in a Democracy. These developments are not the result of individual action of some members of Parliament joining a Government, but due to the administrative action of the leadership of the party to which these members belong. Therefore, the UPFA leadership is responsible for violating the Franchise and through it the Sovereignty of the electors who voted for the UPFA.

CONCLUSION

The Resolution under the Heading “DETERMINATION UNDER THE CONSTITUTION: NUMBER OF MINISTERS OF NATIONAL GOVERNMENT” states that the UNP which obtained the highest number of seats in Parliament at the August 17, 2015 General Election “has formed a National Government”. This self-declaration entitles the Government to determine the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet Ministers and Deputy Minister beyond the limits set in Article 46 (1), which is a total of 70, with the approval of Parliament.

A challenge to the self-declaration is seen as a threat to the privileges of Parliament. The reason for such a perception is based on the notion that a determination made by Parliament cannot be challenged because Parliament is supreme. The evidence presented in support of the supremacy of Parliament during the debate on Sept. 3, 2015, was the ruling given by a former Speaker, Hon. Anura Bandaranaike. However, this ruling and nearly all citations that accompanied the ruling were based on the practices and precedents in the UK, which is the mother of Parliamentary systems of Government. Although this ruling is acclaimed as a landmark judgment, what it overlooked was that when the ruling was given Sri Lanka did not have a Parliamentary system of Government, but had a Presidential System that operates on Separation of Powers. Consequently, Parliament is but one of the 3 Branches of Government. And interpreting the Constitution is exclusively assigned constitutionally by Article 125 to the Supreme Court.

Therefore, in the name of Good Governance there is a compelling need to seek an interpretation from the Supreme Court as to whether the current formation of the Government is in fact a National Government, because the current Government is formed by the UNP that obtained the highest number of seats in Parliament together with ONLY a SECTION of a recognized political party that contested the August 2015 General Election while the rest is with the Joint Opposition. This division has caused the Franchise and therefore the Sovereignty of ALL the People who voted for the UPFA to be violated.

The opportunity to seek an interpretation from the Supreme Court is provided ONLY under provisions of Separation of Powers unlike when all power is vested in a single body, the Parliament, and the fortunes of the People are at the mercy of a Parliament alone. The exercise to determine whether the current Government is a National Government presents an opportunity that should not be missed by those currently engaged in Constitution making to decide which form of Government would best protect the interests and sovereignty of the Peoples of Sri Lanka.

10 Responses to “The Resolution To Establish A National Government”

  1. Fran Diaz Says:

    A very important article by Mr Ladduwahetty for which we thank him.

    We hope the Supreme Court gives a fair ruling on the matters raised.

    ———-

    More Questions :

    * Do Sri Lankans have a National Govt when the Exec PM, Ranil Wickremasinghe, was elected by the President ‘because the west wants it so’ ? Also there aleady was a PM, elected earlier per the Constitution.

    * Do Lankans have a Parliament when Parliament does not seem to function on important matters ?

  2. Susantha Wijesinghe Says:

    NEVILLE !! VERY INTERESTING PRESENTATION. I DONT THINK THOSE CONCERNED WOULD BE ABLE TO COMPREHEND, WHAT IS IN THE CONSTITUTION. THIS IS ONE REASON FOR THEM TO GO AT A TANGENT. LETS HOPE THE SUPREME COURT WOULD ENLIGHTEN THEM.

  3. Cerberus Says:

    Mr. Ladduwahetty, Thank you very much. You have drawn attention to a huge scam that the present Yahapalanaya Govt has done to fool the people. Ranil has got himself appointed as the Prime Minister while there was already a Prime Minister in place. Ranil used the weak My3 who was elected as the President to get himself appointed as PM and then appointed his own UNP cabinet by force against the will of the people by using India and the West as his cover. It appears all that has happened to date is based on a script from a Think Tank outside Sri Lanka.

    Ranil then appointed a Singaporean as the Governor of Central Bank who has pulled scam after scam of obvious insider trading to bring our economy down and decrease the value of the rupee. My guess is when the economy is on its knees as it happened in 2002 where Ranil signed a CFA with the LTTE without anyone seeing it, he will do the same and give a Federal state to the Tamils. This will be his final blow on the Sinhala Buddhist people of this country.

    Thank God that there still a few voices such as yours to point out the questionable legitimacy of the so called “National Govt”. I hope that some good comes out of this strange situation and the Supreme Court makes a fair decision.

  4. Dilrook Says:

    Good governance, national government, reconciliation and constitution making are all gimmicks by this government.

    However, Neville’s case is not valid in the Supreme Court for 2 reasons.

    1. There is nothing called Joint Opposition that is admissible in a court of law. They are not a registered party and all of them contested from the UPFA. They are simply a group of rebellious UPFA MPs. None has shown their interest to leave the SLFP or UPFA they came to parliament from.

    2. There is no need for the entirety of the second placed to party to agree or join the “national government”. UPFA and SLFP which makes almost the entirety of UPFA has joined the UNP while others within the UPFA (mostly those who didn’t get ministries) have opted not to support it. That is normal and does not invalidate the UPFA-UNP group despite the ridiculous “national government” term they use.

    The Joint Opposition must form into a registered political party soon if they are serious. Then at least they can win LG and PC seats pending a parliamentary election. The JO must stop playing both ways opportunistically as it does not help them and the people.

  5. nilwala Says:

    Another useful read on the issue of SC interpretation being needed and relevance of the SLFP “party split” between the Cabinet and the Opposition, from today’s Island:

    http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=146309

  6. Fran Diaz Says:

    We agree with Dilrook that the Jnt Oppn must form a party to be truly effective.
    There are talks that they will do so. We hope this is true.

  7. Ananda-USA Says:

    Regarding JO forming a NEW PARTY,

    Kathawa dolaweng, Gamana paiying!

    Heming wadiyi, ikman karapang puthey!

  8. nilwala Says:

    Fran Diaz:
    Don’t pin too many hopes on the Jt. Opposition getting out a New Party ……

    The JO is dawdling as they lack the courage and RW/MS are banking on that!
    Also, as AnandaW says it is indeed a “Kathaawanan Dolaawen” situation! The only hope for the People today is for the Supreme Court to take courageous decisions and put to rest all the talk of the Sri Lankan Courts being too weak.

    The marketing value of a ‘weak’ Court system may also have something to do with proving through this and other related HIgh Court decisions that the Judiciary is too weak, and hence the need for ‘Hybrid Courts’ in the Accountability Investigation.

  9. Dilrook Says:

    I have listen to Nagananda Kodithuwakku. He is acting with conviction; a great lawyer with genuine concern for Sri Lankans. Tax hikes by this government is discriminatory and if there is a law in the country, cannot proceed.

    I agree with Nilwala’s assertion that marketing Sri Lanka’s weak court system will land the government in a difficult situation. International community will demand hybrid courts as even locals have no faith in the courts system (let alone the international community). As per the constitution, hybrid courts are illegal. Therefore that will bring the accountability investigation into a grinding halt (unless the constitution is changed). It has become nearly impossible to change the constitution. That means this government’s international commitments will not be able to be fulfilled. Even the international community will give up on this government.

    However, legal advisors of the government are working overtime to bypass the system and “buy” war heroes into their side. They already have Fonseka and a few generals involved in the war on their side. According to newspaper reports they are desperately trying to get Gotabhaya on to their side by offering the deputy SLFP leadership post (the highest anyone can get apart from the president who becomes the SLFP leader by party constitution). If the government manages to take the most influential ones and (more importantly) get them to agree on some hybrid court system outside Sri Lanka (emphasised) investigating entire security forces, they may get somewhere. But I doubt Gotabhaya can be “bought” even with the promise of saving a large number of war heroes and political appointments. He is far above these petty gimmicks. War heroes who are more professional in their conduct will never side with Mahinda or anyone else as they will obediently serve the government in power, right or wrong.

    However, the JO must wake up to the possibility and bring Gotabhaya into its fold by shedding Basil and possibly Namal too.

  10. Fran Diaz Says:

    Has Lanka already been neo-colonised ?

    No effective Prez ?
    No effective JO ?
    No effective SC ?
    No effective Parliament ?

    Only El Supremo Exec PM – appointed as the ‘west wants it so’ !!

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