19-A fetters Parliament, not President
Posted on November 20th, 2018

By C. A. Chandraprema Courtesy The Island

By now, everyone in the country would have realized that the current political mess that the country is in, stems from the changes made or purported to be made in the Constitution, by the 19th Amendment. From the very beginning, the 19th Amendment Bill itself has been a mess. On the one hand, though it repealed and replaced Article 30 of the Constitution, the Bill sought to retain a President who was directly elected by the people and who was designated as ‘the Head of the State, the Head of the Executive and of the Government and the Commander in Chief of the Armed Forces’. The only substantial change made by the 19th A with regard to the status of the Executive President was reducing his term of office from six to five years. This fact basically doomed to failure the substantial changes that the 19A sought to make in the status of the Prime Minister.

The 19A sought to make substantial changes to the status of the Prime Minister by repealing and replacing Chapter VIII of the Constitution so as to make the Prime Minister (a) the head of the Cabinet of Ministers. (b) to confer on the PM the power to determine the number of Ministers and the Ministries and the assignment of subjects and functions to such Ministers (c) to make it mandatory for the President to appoint Ministers on the advice of the Prime Minister, and (d) to vest the PM with the power to at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet of Ministers. Had these changes been made, that would have made the PM the effective head of the government in a situation where the President not only was to continue to be elected directly by the people, but also designated as the head of the executive and the head of the government among other things just as he was before the 19A. In its Determination on the 19th Amendment, the Supreme Court held as follows:

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.

What naturally happened on the basis of the above was that the Supreme Court struck down all the changes that were sought to be made to the status of the Prime Minister by the 19th Amendment Bill on the basis that such amendments required a referendum and we were back to square one.

Today, we hear UNP lawyers like Dr. Jayampathy Wickremaratne arguing that under the changes that the 19th Amendment made to Article 70 of the constitution, the President cannot dissolve Parliament until the lapse of four and a half years or Parliament passes a resolution by a two-thirds majority requesting the President to dissolve Parliament. On the other hand, we hear lawyers like President’s Counsel Manohara de Silva arguing that the 19th Amendment introduced a new provision to Article 33 of the Constitution in the form of Subsection (2)(c) which states 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, and that this new provision gave the President unfettered power to dissolve Parliament.

What really has taken place here? Was a fetter placed on the power of the President to dissolve Parliament by the changes made to Article 70(1) by the 19th Amendment? After the 19th Amendment, Article 70(1) of the Constitution, now reads as follows: “The President may by Proclamation, summon, prorogue and dissolve Parliament: Provided 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, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour”.

It should be understood that both before and after the 19th Amendment it is only the President who has the power to dissolve Parliament. There is no provision in our present Constitution for Parliament to be able to dissolve itself. Before the 19th Amendment, Article 70(1) of the Constitution had a provision saying that Parliament could request the President to dissolve Parliament through a resolution passed by a simple majority. After the 19th Amendment, Parliament can make that request from the President only through a resolution passed with a two thirds majority. Both before and after the 19th Amendment, Parliament can only ‘request’ the President to dissolve Parliament. There is, and never was any provision in the Constitution both before and after the 19th A whereby Parliament can ‘order’ the President to dissolve Parliament and which binds the President to carry out such an order. Both before and after the 19th Amendment, when the President receives a ‘request’ for dissolution from Parliament, it is entirely up to the President to decide whether he is going to accede to that request or not.

The dissolution of Parliament either at his discretion or on a request coming from Parliament itself was always a prerogative that goes with the executive power vested in the President. In the Supreme Court determination on the 19th Amendment, it was very clearly stated that ‘so long as the President remains the Head of the Executive, the exercise of his powers remains supreme or sovereign in the executive field …’ Even though Dr. Jayampathy Wickremaratne argues that the amendment made to Article 70(1) by the 19th Amendment has taken away the power of the President to dissolve Parliament before the lapse of four and a half years and vested that power in Parliament, the SC Determination on the 19th A clearly stated that ‘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.’ Therefore, such a shift of powers would need to be approved at a referendum.

In its Determination on the 19th A, the Supreme Court struck down many provisions on the grounds that they would need to be put to a referendum. However, the SC did not consider the change made to Article 70(1) as having taken away the power the President had to dissolve Parliament. The reason for this obviously was the insertion of the provision in Article 33(2) (c) upholding the unfettered power of the President to dissolve Parliament whenever he deemed fit. The fact that Article 33(2) (c) was not in any way been made contingent on Article 70 (1), shows that the latter Article was in no way meant to qualify the former. Had the proposed Article 70(1) in any way qualified Article 33(2) (c), the SC would have immediately taken note of Article 70 (1) as a provision seeking to take away an important discretionary power of the President and give it to Parliament. That would have required a referendum because ‘the transfer, of a power attributed to one organ of government to another organ would be inconsistent with Article 3 read with Article 4 of the Constitution’.

Because Article 33(2) (c) has not, in any way, been made contingent on Article 70(1) the effect that the change made to Article 70(1) has been not to fetter the President’s power to dissolve Parliament, but to impose fetters on Parliament itself, by making it necessary to have a two-thirds majority to request the President to dissolve Parliament – which before the 19th Amendment could be done with a simple majority in Parliament! It should be borne in mind that Article 70(1), after the 19th Amendment, speaks only of how Parliament can ‘request’ the President to dissolve Parliament. The actual decision to dissolve or not dissolve is still very much with the President and there is nothing that Parliament can do to force a dissolution. So we see that Articles 33(2) (c) and 70(1) are in alignment with one another when it comes to recognizing the President as the sole authority that can dissolve Parliament at his discretion.

It is important to note that even if Parliament passes a resolution by a two-thirds majority, that still does not take away the President’s discretionary power in this regard.

One Response to “19-A fetters Parliament, not President”

  1. nilwala Says:

    Absolutely right, Mr. Chandraprema! The attempt to transform a Presidential Democracy to a Parliamentary Democracy giving more powers to the PM, together with some other ulterior motives targeting one family have left this terrible mess. The President still has the power of having been elected by THE PEOPLE with whom SOVEREIGNTY which is INALIENABLE, lies.
    They know it….which is why the Gazette #1 was not contested at the Supreme Court. It is Gazette #2 that now awaits determination by the SC. Hope the SC realizes the full gravity of the implications of their decision which perhaps should go even to a larger bench than the 5-judge bench as currently requested, on account of the very serious national implications.

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