by C.A. Chandraprema Courtesy The Island

November 10, 2018, 9:05 pm

The President unexpectedly dissolved Parliament on Friday night. The proclamation dissolving Parliament states that it was done by virtue of the powers vested in the President by Article 33(2)(c) of the Constitution and Article 70(5) which should be read with Article 62(2). What Article 33(2)(c) – which was a new provision introduced into the Constitution by the 19th Amendment – states is that the President will have the power to summon, prorogue and dissolve Parliament 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… Article 62(2) states that every Parliament shall continue for five years from the date appointed for its first meeting unless Parliament is sooner dissolved. Hence Article 62(2) buttresses the power conferred on the President by Article 33(2)(c) to dissolve Parliament.

President

The President’s proclamation dissolving Parliament also quotes Article 70(5) which stipulates among other things that upon the dissolution of Parliament by virtue of the provisions of paragraph (2) of Article 62, the President shall forthwith by Proclamation fix a date for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. The Gazette notification dissolving Parliament also mentions Section 10 of the Parliamentary Elections Act No.1 of 1981 which stipulates that “The President shall, in every Proclamation dissolving Parliament or in any Order requiring the holding date of an election, specify the period during which nomination papers shall be received by the returning officer; and the date on which the poll shall be taken.”

All those requirements have been met in the President’s proclamation dissolving Parliament. The duty conferred on the Elections Commission by Article 104B (1) of the Constitution is that “The Commission shall exercise, perform and discharge all such powers, duties and functions conferred on the Commission or the Commissioner-General of Elections, by the Constitution, and by the law relating to the election of Members of Parliament…”

Can the President dissolve Parliament?

Just before the dissolution actually took place, the UNP had been stressing at every press conference they held, that the President does not have the power to dissolve Parliament. At the same time, members of the Joint Opposition like Udaya Gammamila have been arguing that the President does have the power to dissolve Parliament. The arguments for and against the dissolution of Parliament hinge on the interpretation of Articles 33 and 70 of the Constitution. Dr Jayampathy Wickremaratne had written to the Colombo Telegraph recently, arguing that the President cannot dissolve Parliament because the 19th Amendment had amended Article 70 of the Constitution so that the President cannot dissolve Parliament until the lapse of four years and six months from the date of its first meeting, unless Parliament requests the President to do so by a resolution passed by a two-thirds majority.

President’s Counsel Manohara de Silva, on the other hand argued that the 19th Amendment added to Article 33 of the Constitution the following passage – “33(2) (c)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.” This provision in Article 33(2)(c) did not exist in the earlier Article 33 and had been specifically introduced by the 19th Amendment to the powers vested in the President. Hence the argument is that this provision had been specifically placed there to confer the power on the President to dissolve Parliament.

To this argument, Dr Jayampathy Wickremaratne has responded by claiming that the new Article 33 only declares some of the ‘general powers’ of the President and that the manner in which that power of dissolution can be exercised is given in Article 70. What brings Dr Wickremaratne’s argument into doubt however, is the fact that Article 33(2)(c) has not in any way been made subject to the provisions of Article 70 by the Constitution and for all purposes and intents, the provisions of  Article 33(2)(c) and Article 70 are independent of each other. Thus we have in the same Constitution two independent provisions one giving the President unfettered power to dissolve Parliament and the other imposing restrictions on the power of the President to dissolve Parliament. How is this conundrum to be solved?

Dr. Wickremaratne himself has shown the way to resolve this. In his recent article in the Colombo Telegraph, he says the following –  “It is a golden rule that in interpreting a Constitution, the Constitution as a whole must be looked at, not at just one provision in isolation. If the issue is related to an amendment made to the Constitution, we need to look at the corresponding provisions before such amendment. The intention of the legislature in amending the Constitution must be considered. If the amendment was consequent to a pledge made at an election, then the circumstances of that election must also be considered. Constitutional provisions cannot be read in isolation, in a vacuum.”

Mutilation of parliamentary tradition by 19A

Going by what Dr. Jayampathy Wickremaratne has said in the above passage, we should start by examining how the old Article 70 of the 1978 Constitution was MUTILATED by the 19th Amendment. The Article 70 that J.R.Jayewardene had in his Constitution was a long section of more than two pages which incorporated some of the most hallowed traditions of a parliamentary form of government. What the old Article 70 contained were parliamentary traditions that had been in the 1948 Constitution and the 1972 Constitution and brought into the 1978 Constitution by JRJ.

This Article enabled Parliament to dissolve itself by a resolution passed by a simple majority. It empowered the President to dissolve Parliament if the Budget was defeated and made it mandatory for the President to dissolve Parliament if the Budget is defeated the second time. The old Article 70 also imposed certain mild, practical limits on the President’s power to dissolve Parliament. For example, when a general election has been held after an early dissolution of Parliament, the President could not dissolve parliament yet again until the the lapse of one year unless Parliament passes a resolution by a simple majority to dissolve itself. Another restriction on the President’s power to dissolve Parliament was that the President shall not dissolve Parliament on the rejection of the Statement of Government Policy at the very first session of Parliament after a General Election.

Thus we see that the old Article 70 imposed only mild and manageable restrictions on the President’s power to dissolve parliament so that we don’t have a situation where one dissolution follows another. The restictions were deliberately kept within limits because in a Parliamentary form of government, it was necessary to dissolve a Parliament if it comes to a state where proper governance of the country was not possible.

Providing for the dissolution of Parliament is one of the cornerstones of a parliamentary democracy. It is by dissolving Parliament and allowing the sovereign people to exercise their franchise that the democratic system of government is kept going. There was no need to impose draconian limits on the power of the President to dissolve Parliament because no President would dissolve parliament early, unless it was deemed to be absolutely necessary. If a situation has arisen in the country where a President feels that it is best to dissolve Parliament and hold elections then ipso facto it is always best for the sovereign people to be allowed to decide. That is how the system was supposed to work.

But the government that took office in January 2015 claims to have introduced changes to Article 70 through the 19th Amendment that make it impossible for the President to dissolve Parliament under ANY CIRCUMSTANCES until the lapse of four and a half years and that even if a government loses the budget, loses the vote on the statement of government policy, or loses a no confidence motion against the Prime Minister, Parliament still cannot be dissolved! According to this claim, a subsequent government can be formed only by the same Parliament without holding an election. This flies in the face of some of the most vital conventions that make the parliamentary system work.

The 1948 Constitution, the 1972 Republican Constitution, and JRJ’s 1978 Constitution all upheld the conventions where Parliament could be dissolved early if necessary for fresh elections to be held. If we go by the interpretation put forward by the likes of Dr.Wickremaratne, Parliament cannot be dissolved until the lapse of four and a half years, and only the Cabinet can be dissolved and a new Cabinet formed. That not only goes against the spirit of the parliamentary tradition, it is also impractical. Parliament cannot function for five years, like a bag full of 225 cats which is why every Constitution since independence had provisions for the early dissolution of Parliament if the circumstaces warrant it. Holding fresh elections was always the most important dispute resolution mechanism in the Parliamentary system.

The SC’s 19A Determination

Readers should take note of the fact that when the Supreme Court heard the petitions against the 19th Amendment in 2015, one of the questions that the three member bench made up of Chief Justice K.Sripavan, and Justices Priyasath Dep and Chandra Ekanayake never even considered was whether the 19th Amendment prohibited the President from dissolving Parliament until the lapse of four and a half years unless Parliament resolved to dissolve itself by a two thirds majority. Such a thing would have been too preposterous even to consider. As far as the three member bench of the SC led by Chief Justice Sripavan was concerned, the 19th Amendment sought to make 16 principal amendments to the Constitution which they listed.

Even though item 12 on that list mentioned “Amendments relating to the prorogation of Parliament”, there was no mention of any limitation of the President’s power to dissolve Parliament and the matter was never even discussed in the determination even though Dr. Wickremaratne claims that such a limitation was one of the intended cornerstones of the 19th Amendment. It seems to be quite clear that limiting the President’s power to dissolve Parliament was never considered by the Supreme Court to be among the changes that the 19th Amendment introduced to the Constitution. The SC may have deliberately refrained from considering the amendments that were supposedly made to the power of the President to dissolve Parliament for two reasons.

Firstly, the 19th Amendment itself introduced to Article 33 the new Subsection 33(2)(c) which stated quite clearly that the president had unfettered power to dissolve Parliament and secondly because it was so unusual, impractical and contrary to parliamentary tradition to impose restrictions of the kind envisaged by the likes of Dr. Wickremaratne, on the dissolution of Parliament. In any event, Article 70 of our Constitution both before and after the 19th Amendment, has the inbuilt safeguard that if Parliament is dissolved, the President’s proclamation dissolving Parliament has to mandatorily fix the date for the election and also to fix the date for the first meeting of the new parliament. Thus to the Supreme Court, and all of us as well, the dissolution of Parliament is obviously not a cause for worry at all because it will be an opportunity for the sovereign people to exercise their franchise.

No dissolution takes place without the dates beng fixed for the election, for the closing of nominations and for the first meeting of the new Parliament. So this is the ultimate exercise of the people’s sovereignty through the franchise. This is obviously why there is not even one sentence about the purported restriction on the power of the President to dissolve parliament, in the SC determination on the 19th amendment. It would be pertinent to note that the three member bench of the SC expressly based their determination on the 19th Amendment, on the following points which are self explanatory.

1.      The People in whom sovereignty is reposed made the President the Head of the Executive in terms of Article 30 of the Constitution and entrusted in the President, the exercise of the Executive power. If the people have conferred such power on the President, it must be either exercised by the President directly or someone who derives authority from the President. If the inalienable sovereignty of the people which they reposed on the President in trust is exercised by any other agency or instrument who do not have any authority from the President then such exercise would necessarily affect the sovereignty of the People.

2.      The transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom to such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President.

This makes it quite clear that the Supreme Court took the new provision in Article 33(2)(c) which the 19th Amendment added to the old Article 33 to mean that the President quite literally had unfettered power to summon, prorogue and dissolve Parliament which is a power conferred on the President ‘in addition to the powers and functions expressly conferred or imposed on the President by the Constitution or other written law’. Since Article 33(2)(c) has not been made subject to Article 70 by the 19th Amendment, the provision in Article 70(1) on which people like Dr. Jayampathy Wickremaratne bases the claim that Parliament cannot be dissolved for four and a half years, thus automatically falls into the category of the ‘other’ powers duties and functions imposed on the President by the Constitution.

As far as the Supreme Court was concerned, the changes made to Article 70 fall into the part of the determination where the judges say “We have considered the remaining provisions of the Bill with the assistance of the Hon. Attorney General and we do not see any other matters that would require consideration by this court in terms of Article 83 of the Constitution.” If changes to Article 70 actually imposed restrictions on the President’s powers to dissolve Parliament, there is little doubt that the Supreme Court would have had something to say about it, at least in passing.

Another reason why the three member bench led by Chief Justice Sripavan never even looked at the purported restrictions that the 19th Amendment is supposed to have sought to impose through changes to Article 70 is because the 19th Amendment had other very similar meaningless shuffling around of constitutional provisions. We have drawn attention to the fact that the 19th Amendment repealed Article 42 of J.R.Jayewardene’s Constitution and reintroduced the identical provision without changing a single word or comma, as Article 33A and then claimed that they had made the President responsible to Parliament in a situation where the President had always been responsible to Parliament under JRJ’s constitution from its inception in 1978!

In fact the Supreme Court had taken note of this childish perfidy in their determination on the 19th amendment and it appears as item 6 on their list of the 16 Constitutional changes that the 19th Amendment sought to make under the rubric “Effective renumbering of Article 42 as Article 33A”! So why would the Supreme Court be surprised if what was sought to be taken away by Article 70 was reintroduced through Article 33(2) (c)? It appears that the drafters of the 19th Amendment had inserted Article 33(2)(c) in the Constitution to prevent the Supreme Court from shooting down the changes they had made to Article 70. They may have thought that after a while, people would start following Article 70 without looking at the rest of the Constitution. The stock in trade of the yahapalana government was deception and dissimulation.

Who’ll petition the SC against an election?

Be that as it may, Parliament now has now been dissolved by the President, the dates for the nomination period and the election have been fixed and the date for the new Parliament to meet has also been fixed.  If someone goes to the Supreme Court against this dissolution, he will have to ask the SC to declare the dissolution to be illegal because article 70 says that Parliament cannot be dissolved until the lapse of four and a half years and that the 19th Amendment is more important than the right of the sovereign people to exercise their franchise. The judges of the Supreme Court no doubt observed the manner in which the yahapalana government tried to dodge holding elections and the strenuous efforts that were made to get them to finally hold the local government elections after a delay of nearly three years.

The judges of the Supreme Court have observed the manner in which the yahapalana government delayed provincial council elections by more than one year. They have observed the manner in which the yahapalana government brought committee stage amendments to Bills that had been introduced in Parliment for completely different purposs, in order to compeletely change the system of elections to the local government and institutions and provincial councils for the purpose of indefinitely putting off elections to those bodies on the excuse that delimitation issues were causing the delay. The Supreme Court knows that this reluctance to hold elections was itself adding to the unrest in the country. Now at long last an election has been declared. In a context where there was dissension spreading throughout society due to the continuous postponement of elections by the yahapalana government, can anyone expect the Supreme Court to say that the holding of an election to allow the sovereign people to exercise their franchise is illegal and that the Parliamentary election should not be held?

If any political party goes to the SC to obtain a declaration that holding a Parliamentary election is illegal and that the people should not be allowed to exercise their sovereign right through the franchise, simply because the election is being held before they completed their full term of office, what will that sound like to the voting public who have been complaining for more than three years about long delays in holding elections? The arguments the yahapalanites will have to make in court against holding an election and the response from the other side will be worth listening to!

Note: The present writer is opposed to the executive presidential system. This article is merely an explanation of the provisions of the Constitution as amended by the 19th Amendment. Perhaps this is a reason to redouble our efforts to be rid of the executive presidential system?