Constitutional Provisions in the Current Context
Posted on November 13th, 2018

By Neville Ladduwahetty Courtesy The Island

Dr. Jayampathy Wickrmaratne is reported to have stated: “President Maithripala Sirisena cannot dissolve Parliament to overcome the current constitutional crisis caused by the unconstitutional sacking of PM Ranil Wickremesinghe”. The report also states: “It is a golden rule that in interpreting a Constitution, the Constitution as a whole must be looked at, not one provision in isolation” (The Island, 10th Nov. 2018).

If the Constitution is to be looked upon as a whole, there is a need to visit the very foundation on which the Constitution is founded. It starts with sovereignty being with the People. Article 3 of the current Constitution states: “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. Thus, the fundamental premise is that the sovereignty of the People is to be held in trust by their elected representatives, and implemented through the organs of government.

Article 3 of the 1972 Constitution also stated that “Sovereignty is in the People and is inalienable”, but it did not include fundamental rights and franchise. Furthermore, Article 4 of the 1972 Constitution stated that “The Sovereignty of the People is exercised through a National State Assembly of elected representatives of the People”. Consequently, the National State Assembly as the “the supreme instrument of State power” exercised the legislative, executive and judicial powers of the People thus making Sri Lanka a Parliamentary Democracy.

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This, however, is not the case with the current Constitution. Article 4 that spells out the “powers of government” states that the legislative power of the People shall be exercised by Parliament (Article 4 (a); the executive power of the people shall be exercised by a President directly elected by the People (Article 4 (b) and the judicial power of the People shall be exercised by Parliament through courts, tribunals etc. Article 4(c).

Furthermore, since sovereignty is inalienable each of the above powers must and should remain separate and equal. In addition, they cannot be transferred, relinquished or removed without the expressed consent of the People. This makes Sri Lanka a presidential democracy. This then should be the starting point to address the charges made by Dr. Jayampathy Wickramaratne.

The inability to appreciate the difference between the two systems has caused legal and academic experts to keep on describing Sri Lanka as a Parliamentary democracy, when in fact it has been a Presidential democracy for the last forty years. A key aspect of this difference is that while parliamentary democracies cannot function without a majority presidential democracies could function independent of a majority since powers are separate. In such an instance the lack of a majority in Parliament only hampers the passage of legislation.

The perception that Sri Lanka is a parliamentary democracy is perhaps the reason for interpreting Article 33A that states: “The President shall be responsible to Parliament for the exercise, performance and discharge of his powers, duties and functions…” to mean that the Executive is “answerable” to Parliament. Such an interpretation is seriously flawed because it ignores the inalienability of the sovereign powers of the People.

SACKING of PRIME MINISTER

The so-called “unconstitutional sacking” of Ranil Wickremesinghe must be viewed from the background material presented above. Chapter VIII titled “The Cabinet of Ministers” in the 19th Amendment sets out the relationship between the President as the Head of the Cabinet of Ministers and the Cabinet. Accordingly, it is the President who appoints the Prime Minister as one “who in the President’s opinion is most likely to command the confidence of Parliament”, Art. 42 (4). However, it is the President who “determines the number of Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers (Art. 43(1). The only change in the 19th Amendment from what existed earlier is that the appointment of Cabinet Ministers, State Ministers and Deputy Ministers “shall be on the advice of the Prime Minster”.

Notwithstanding this, Article 43 (3) states: “The President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Such change shall not affect the continuity of the Cabinet of Misters and the continuity of its responsibility to Parliament”. Since the identical provision was provided in the 1978 Constitution the comment by late Prof. A. J. Wilson was: “This section therefore empowers the President to even dismiss his Prime Minister and or reshuffle his Cabinet without consultation with the former, because it states that ‘such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament” (The Gaullist System in Asia, The Constitution of Sri Lanka, 1978, p.44).

The President did not arbitrarily “sack” PM Ranil Wickramasinghe. The sacking occurred as a result of the National Government with an Executive of 93 ceasing to exist following the withdrawal of the UPFA from the coalition. This precipitated a constitutional necessity to reconstitute the Executive and limit it to 70 and assign new subjects and functions. This necessity coupled with the deep discontent in the country regarding the direction and control of the government, unparalleled corruption and the sale of national assets, motivated the President to appoint a new Prime Minister who had the proven ability to give a new direction to his government. Therefore, the sacking of the Prime Minister is not a political coup or political crisis but a precipitation of a series of events that required Presidential intervention in keeping with the Constitution.

DISSOLUTION of PARLIAMENT

Article 70 (1) of the 1978 Constitution entitled the President to “summon, prorogue and dissolve Parliament” until paragraph (1) was repealed and substituted with the provision that the President “shall not dissolve Parliament until the expiration of a period not less than four years and six months … unless the Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members…”. This means that Parliament could secure a two-third majority at anytime within the four and half years, and “request” the President to dissolve Parliament This amounts to powers the President has as Head of State being transferred to another organ of government, i.e., the Parliament thereby violating the inalienability of the executive powers of the People. However, the fact that 33 (2) (c) is incorporated within Article 33 (2) means the President’s power to dissolve Parliament was not restricted and the repeal of Article 70 (1) has no relevance.

Despite this, there are three special circumstances, namely, “If Parliament rejects the Statement of Government Policy, or the Appropriation Bill or passes a vote of no confidence in the Government the Cabinet of Ministers shall stand dissolved …and for the President to appoint a new Executive” (Article 48 (2). How many times is this process to continue before Government operations break down and the country comes to a standstill? The inclusion of Article 33(2) (c) in Article 33(2) enables the President to overcome such challenges (SLR -2002 Vol. 3, para. 102). Since Article 33(2) states that the powers listed are “In ADDITION (emphasis added) to powers, duties and functions expressly confirmed …” Article 33(2) (c) overrides Article 70. Furthermore, it could also be applied to 33 (2) (f). This empowers the President, if he so chooses, to engage in “acts of appointment of Prime Minister and other Ministers, the Chief Justice and this other judges of the Supreme Court, the President of the Court of Appeal…” thereby overriding limitations imposed on such appointments by the 19th Amendment. Clearly, under no circumstances could the entirety of Article 33 (2) be categorized as “general powers”, as asserted by Dr. Wickramaratne.

CONCLUSION

The flawed understanding that the system of Government in Sri Lanka is a Parliamentary Democracy is the reason for the outcry to reconvene Parliament to establish who has the majority. The fact that the Constitution provides for the “powers of government” to operate separately under the collective rubric of the sovereignty of the People makes the system in Sri Lanka a Presidential Democracy. It is a matter of deep regret that this distinction is not understood.

It is unrealistic to expect the International community to be aware of Sri Lanka’s constitutional complexities when such awareness does not exist among Sri Lanka’s own legal and academic fraternities. Their common shrill is that Parliament should be reconvened to establish majorities and minorities in the misguided hope that establishing majorities would resolve all issues. This has caused the situation in Sri Lanka to be internationalized and to be described as a political coup or a political crisis on grounds that the measures adopted by the President were undemocratic and unconstitutional.

The explanation for the prevailing constitutional confusion is the ad-hoc incorporation of new provisions into what had existed, with the objective of transforming a Presidential Democracy into a Parliamentary Democracy without the consent of the People at a Referendum. Another parallel is the incorporation of provisions for devolution from a Parliamentary Democracy in India into a Presidential Democracy in Sri Lanka, notwithstanding the inherent incompatibilities. It is only through an understanding of these fundamentals that Sri Lanka could hope to emerge from this confused state.

3 Responses to “Constitutional Provisions in the Current Context”

  1. Ananda-USA Says:

    I FULLY AGREE with Neville: A key aspect of this difference is that while parliamentary democracies cannot function without a majority presidential democracies could function independent of a majority since powers are separate.

    We have already seen this in ACTION since the REGIME CHANGE on Jan 8, 2015! Why not NOW?

  2. Ananda-USA Says:

    This Supreme Court Decision by (ONLY) THREE Supreme Court Judges is an INTERIM (TEMPORARY) INJUNCTION to halt ALL POLITICAL ACTIVITY related to the DISSOLUTION of Parliament and the HOLDING of NEW Parliamentary ELECTIONS.

    Here are my thoughts on the IMPACT of this ORDER, and the REMEDIES available to the New Govt.

    The TEMPORARY INJUNCTION APPLIES TO ALL PARTIES to the DISPUTE; not only the Govt.

    THEREFORE, the Govt cannot PROCEED with the NEW ELECTIONS, the Parliament is TEMPORARILY NOT-DISSOLVED, and it CANNOT RESUME SESSIONS either!

    RESUMING SESSIONS would be TANTAMOUNT to VIOLATING the TEMPORARY INJUNCTION issued by the Supreme Court!

    In particular, as he has threatened to do, the Speaker Karu Jayasuriya cannot organize a VOTE COUNT to show who has the Parliamentary majority, without FLOUTING the TEMPORARY INJUNCTION himself. Besides, only the President can CONVENE and CLOSE the Parliament; NOT the Speaker!

    Also, the Govt will APPEAL the Supreme Court Decision, in particular the LIFTING of the TEMPORARY INJUNCTION issued by the 3 judges.

    Furthermore, they are likely to also ask for a decision by the FULL Supreme Court comprising 11 judges in case they suspect that the 3 judge panel is BIASED!

    Finally, as Neville points out, in our Presidential Democracy, the FINAL EXECUTIVE Power lies with the President, NOT the Supreme Court. While no President likes to IGNORE an order of the Supreme Court, he CAN & DOES SO in certain National Emergencies like the PRESENT ONE.

  3. nilwala Says:

    People in Sri Lanka including some legal luminaries and politicians do not quite understand how a Presidential Democracy functions, and how the distribution of powers is not dependent on a majority in Parliament as in the Westminster model, when a President has been elected into power by the whole country. This Westminster model is what is set and moulded in RW’s mindset as well.
    A minority Govt. in the power seat of a Presidential Democracy means only that legislation will stall if party lines are the basis of a vote as happened today. While the Budget can run into a snag, but even a No-Confidence motion can fail unless a 2/3 majority is obtained. However, the other functions can proceed.

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