By C. A. Chandraprema Courtesy The Island

The whole purpose of making it virtually impossible to dissolve Parliament until the lapse of a period of four and a half years was a knee-jerk reaction to the dissolution of Parliament in 2004 by Chandrika Kumaratunga, who sent the UNP into the political wilderness for over a decade. While the recent Supreme Court decision shows that the UNP has succeeded in achieving its objective, the wisdom of what it did through the 19th Amendment needs to be called into question. What is surprising is that there would be so-called ‘constitutional experts’ who would seek to insert such an ill-thought out provision into the Constitution without giving any thought to the practical aspects of running a government.

Under the present provisions of the Constitution, as confirmed recently by the Supreme Court, Parliament cannot under any circumstances be dissolved before the lapse of four and a half years. Article 48(2) of the Constitution after the 19th Amendment states that 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 the President shall, appoint a new Prime Minister, and a new Cabinet. Those who introduced this provision to the Constitution for some reason do not seem to have realised that contrary to the objectives of the 19th Amendment which was ostensibly brought to reduce the powers of the executive presidency, what has now happened is that the executive president has now been strengthened immeasurably and he has been vested with powers that J. R. Jayewardene never even thought of.

Under the provisions of the present law, the executive president can give a portfolio to any one of the 225 Members of Parliament. In the event an incumbent government loses the vote on the budget, the vote on the statement of government policy or loses a vote of no confidence, that means that the group that earlier had the majority in Parliament, no longer has that majority to be able to run the country. In such a situation, more often than not, there will not be any single group that can command a majority in Parliament. Under such circumstances, before the introduction of the 19th Amendment, Parliament would have been dissolved and the people given the opportunity to elect a new government. However in circumstances where Parliament cannot be dissolved, the responsibility for forming a new government will fall entirely on the shoulders of the President. He will have no option but to take a few MPs from one party, a few more from another party and somehow cobble together a majority even if he has to appoint all 113 MPs needed to maintain a bare majority as Ministers, State Ministers and Deputy Ministers.

The telling off of the century

The only reason why President Sirisena has not had to do that in the present instance is that the UNP government has got the backing of the TNA to be able to have a majority in Parliament and in any case, the UNP government that was in power before October 26th did not lose a vote on the budget, a vote on the statement of government policy or a vote of no-confidence motion. So, in this instance, the UNP has a majority in Parliament and that majority was able to prevail upon the President to appoint as Prime Minister the person they wanted appointed to that job. President Sirisena has now done that. But to think that they have brought the President under their control would be a bad mistake.

Last Sunday, President Sirisena appointed Ranil Wickremasinghe as Prime Minister, then got all of the UNP stalwarts who had come to witness the swearing in, seated around a table and proceeded to give them the kind of telling off that no Prime Minister has ever had to stomach immediately after being sworn in.

The video of that telling off went viral on the internet and that was the first taste that the UNP got of what life was going to be like under a hostile President. There will be worse to follow. Under the provisions of the 19th Amendment, the President can only if he sees fit, consult the Prime Minister, in determining the number of Ministers and the assignment of subjects and functions to such Ministers. Even though the President is mandatorily required to consult the Prime Minister in appointing MPs as Ministers, the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers.

Furthermore, according to the provisions of the 19th Amendment the President is not only the head of the state and the executive, but also the head of the government and the head of the Cabinet as well. Thus, whether we like it or not, he will be compelled to shape the government according to his wishes. The reason why that parting of ways of October 26 took place was because the President had not sought to assert himself earlier. He watched the doings of the UNP as a passive partner in the government and over a period of time resentment built up. There were periodic outbursts as when he instituted a Commission of Inquiry to probe the Central Bank bond scam and disbanded the UNP’s economic affairs committee but his role and the role of the large number of UPFA Parliamentarians that he had within the government was mostly passive at least as far as policy making was concerned.

Remember what happened to Justice K. Sripavan?

If the president had actually been driving policy as his titles of head of state, head of the executive, head of the government and head of the Cabinet would suggest, there would have been no break up on October 26. This time, because the President has had to reappoint Wickremesinghe under protest, and the two will be compelled under the Constitution to continue together for at least one year and three months, the President will have to do whatever is necessary to browbeat, whip or flog that government into the shape he desires. The President is the head of the Cabinet and the head of the government. Therefore anything that the UNP does will also be his responsibility. Between 9 January 2015 and 26 October 2018, the people of this country did hold President Sirisena to be responsible for everything that was happening in the country.

Even though President Sirisena tried to distance himself from the doings of the UNP led government during the Feb. 10 local government elections, the people did not accept the President’s platform rhetoric. Now once again, if he plays a passive role in government letting the UNP do just as they please while he retains the titles of head of government and head of Cabinet, that will be the end of his political career. Thus, the exigencies of politics will compel him to stamp his imprimateur on the government that he is now in the process of forming with the UNP. Even after the President broke up with the UNP on 26 October and then lashed out at the UNP, many speakers of the UNP began saying that the President cannot escape blame for all that happened after 9 January 2015, because he too was part of the government and the Cabinet which makes collective decisions.

It must also be remembered that some time ago, the former Chief Justice K. Sripavan was given the impression by the then President of the Bar Association Geoffrey Alagaratnam that the Bar Association was recommending the appointment of a member of the private bar one R. Kannan as a High Court judge. When Kannan was appointed as a High Court judge there was an outcry against it from the career judges at the District Judge level who were waiting promotion. At that point the BASL issued a letter saying that no decision had been made by the BASL that Kannan should be appointed as a High Court Judge and it turned out that the president of the BASL had been canvassing for Kannan in his private capacity. What had happened in fact was that Alagaratnam had misled the Chief Justice and the members of the Judicial Services Commission.

By that time Kannan had already been appointed as a judge. Later, instead of apologizing to Justice Sripavan for having led him up the garden path, Alagaratnam had the temerity to say that the former Chief Justice should have exercised ‘due diligence’ in appointing Kannan as HC Judge. That is to say that if the CJ had been taken for a ride, the CJ was at fault. That was yahapalana morality at its best. Most normal, non-yahapalana types would think that the Chief Justice of the country should be able to have implicit faith in the President of the Bar Association and to accept his word without further scrutiny. These are the types that President Sirisena now has to contend with. So if he does not want to become another Sripavan, President Sirisena will have to whip the UNP government (both figuratively and literally) into a shape that is acceptable to him as the head of the government and the head of the Cabinet.

So Sri Lanka!

If President Sirisena does not do that, he will have only himself to blame when he has to share the responsibility for what happens in the country in the next one year and three months. The mighty harangue that President Sirisena started his new journey last Sunday shows that he is in fact acutely aware of this unwanted and unsought responsibility that has been thrust upon him by the Constitution, as interpreted by the Supreme Court. The President has now been burdened with not only having to tolerate and coexist with a political party and individuals that he detests but even to function as their leader and to take collective responsibility for their doings! At least in this case, he was lucky to some extent because there was a readymade majority which he could appoint as a government and he did not have to exert himself to cobble together a majority to form a government.

However, if President Sirisena had found himself in a situation like that which President Chandrika Kumaratunga found herself, in 2001, he would have had to offer various inducements to reluctant MPs to join his government because the Constitution placed the responsibility of forming new governments and continuing until it was possible to dissolve Parliament on his shoulders. This writer has been saying, since the time this controversy broke out, that the power of dissolution is an integral part of the parliamentary system and that no Parliamentary form of government can be expected to run successfully without being able to dissolve parliament when the Parliamentary government can no longer command a majority.

However, the drafters of the 19th Amendment seem to have thought that the way to prevent a hostile President from dissolving parliament on a whim was to turn the MPs who aspire to form a government into prisoners of that same President. As former President Mahinda Rajapaksa has pointed out in his speech on 2 December, there is no legislature in the world with the sole exception of Norway which cannot be dissolved even if the incumbent government loses a vote on the budget, the vote on the statement of government policy or a no-confidence motion. Over the next one year and three months, the UNP and all of us Sri Lankans are going to learn the hard way why the power of dissolution was always an integral part of the Parliamentary tradition.