Parliament: to allow or disallow dissolution? -The Constitutional Madhouse – Part 3.
Posted on February 17th, 2019

By C.A.Chandraprema Courtesy The Island

Prior to the promulgation of the 19th Amendment, the President’s power to dissolve Parliament had been stated in Article 70(1) of the Constitution. Under this provision, the President had the power to dissolve Parliament in the following circumstances.

(a) If a General Election has been held consequent to a dissolution of Parliament by the President, the President shall not thereafter dissolve Parliament until the expiration of a period of one year from the date of that General Election.

(b) Parliament may at any time by resolution – passed by a simple majority – request the President to dissolve Parliament.

(c) The president could not dissolve Parliament on the rejection of the Statement of Government Policy at the commencement of the very first session of Parliament after a General Election (but there was no restriction on dissolving Parliament if the Statement of Government Policy was rejected yet again.)

(d) If the President has not dissolved Parliament consequent to the rejection of the Appropriation Bill (budget), the President shall dissolve Parliament if Parliament rejects the next Appropriation Bill.

(e) Parliament cannot be dissolved by the President if the Speaker has entertained an impeachment motion against the President.

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The provisions in the old Article 70(1) were what one could expect in democracy with a Parliamentary form of government. They were all in keeping with the parliamentary system which has gradually evolved over the centuries. The power of dissolution is an important tool to ensure that Parliament always represents the will of the people. It is also a tool that ensures loyalty to policies and political parties among elected MPs. If differences emerge within a ruling party or coalition, the only way in which stability can be restored is to go for a general election. The possibility of a dissolution is what keeps MPs, especially those in the government, from taking personality clashes and unimportant policy differences beyond a certain point. Splits take place only on important issues where reconciliation is virtually impossible.

Hence the power of dissolution is something that has gone hand in hand with the Parliamentary system. When the 19th Amendment was promulgated, Article 70(1) was amended to read 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 was very clear that the intention of the 19th Amendment was to make it impossible to dissolve Parliament whatever the circumstances. The change made to Article 70(1) was buttressed by Article 48(2) which was also introduced to the Constitution by the 19th Amendment. What article 48(2) stated was that if Parliament rejected the Statement of Government Policy or the Appropriation Bill or passed a vote of no-confidence against the Government, the Cabinet of Ministers (but not Parliament) shall stand dissolved, and the President shall, unless he has dissolved Parliament in terms of Article 70, appoint a new Prime Minister and a new Cabinet.

A Parliament that cannot be dissolved

So it was very clear that in terms of both Articles 70(1) and 48(2) as introduced by the 19th Amendment, Parliament cannot be dissolved even if the budget was defeated; government policy is defeated and the government is defeated in a vote on a no confidence motion not just once but even a hundred times. Under the 19th Amendment, Parliament can be dissolved before its term is up only if Parliament resolves by a two-thirds majority to recommend to the President to dissolve it. For a while there was some confusion due to the fact that the 19th Amendment had also introduced Article 33(2)(c) to the Constitution which read as follows: “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.”

The term ‘in addition’ to the powers conferred on the President by the Constitution or any other written law was taken to mean that the power conferred by Article 33(2)(c) was in addition to the provisions of Article 70(1) and that therefore under Article 33(2)(c) the President had unfettered power to dissolve Parliament despite anything stated in Article 70(1). However what the Supreme Court decided in the FR application filed by R. Sampanthan et al against the dissolution of Parliament and the summoning of a general election was as follows:

“… although Article 33(2)(c) states that the President has the power to summon, dissolve and prorogue Parliament, Article 33 (2) (c) does not state how that power is to be exercised or state the manner in which the President is entitled to exercise that power. In the absence of any words in Article 33 (2) (c) which describe the manner in which the President is entitled to exercise the power of summoning, proroguing and dissolving Parliament, the Court must look at the other provisions of the Constitution for guidance to ascertain how the power referred to in Article 33 (2) (c) may be lawfully exercised by the President …When that is done, it is seen that the only provision in the Constitution which sets out the manner in which Parliament may be summoned, prorogued or dissolved by the President is Article 70 …”

When the original 19th Amendment Bill was scrutinised by the Supreme Court in 2015, it struck down all provisions that sought to restrict the powers of the President on the grounds that such a change would require approval at a referendum. So, the President after the 19th Amendment is very much the same as the presidential powers that existed before it. The only reduction in power that passed the SC was this change made to article 70(1). Legal experts are of the opinion that the only reason why the change made to Article 70(1) got past the SC was because of the insertion of new Article 33(2)(c) through the 19th Amendment which seemed to restore to the President the power that he was losing through the change made to Article 70(1). Many lawyers are completely convinced that the only purpose of Article 33(2)(c) was to mislead the judiciary.

There are other instances where this kind of shuffling around of powers has taken place through the 19th Amendment. For example, the new Article 43(2), introduced to the Constitution through the 19th Amendment, sought to make it mandatory for the President to consult the Prime Minister when appointing MPs as Ministers. If this had been a standalone provision that would have resulted in an actual reduction of the President’s powers. But the Supreme Court allowed this to pass without requiring a referendum because the very next provision in the Constitution Article 43(3) restores to the President the power that was taken away by Article 43(2) by stating that “the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers.” It is no surprise, therefore, that so many people including apparently the Supreme Court (back in 2015) thought that Article 33(2)(c) was meant to restore to the President the power that had been taken away by the change made to Article 70(1). However, it later turned out that Article 33(2)(c) was just the ‘driving licence’ and that the ‘road rules’ were contained in Article 70(1).

Doing and undoing in rapid succession

Be that as it may, the 19th Amendment was ‘signed into law in April 2015. One would think that when an amendment is made to a constitution, it has been well thought out and meant to last decades of not centuries. Thus, the change made to Article 70(1) by the 19th Amendment should have been meant to last. However, the proposed draft constitution which was tabled in the Constitutional Assembly last month has the following provision.

“106. (1) The President may by Proclamation, summon Parliament: (2) The President may dissolve Parliament if 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. (3) In the first two years of the Parliament, in the event that the government is unable to secure the passage of an annual Appropriation Bill after three attempts, the President shall dissolve Parliament. (4) After the first two years of the Parliament, in the event that the government is unable to secure the passage of an annual Appropriation Bill after two attempts, the President shall dissolve Parliament.”

Even though dissolution of Parliament has been completely banned by the 19th Amendment even if he budget is defeated not once but even a hundred times, we see from Clause 106 of the draft constitution that the President’s power to dissolve Parliament in the event of a defeat of a vote on the budget has been reintroduced. The provisions in the pre-19th Amendment Constitution, which allowed for dissolution in the event of a defeat of the government at a vote of no confidence or a vote on the statement of government policy, has been dropped, but dissolution upon the rejection of the budget has been reintroduced. Those who drafted the 19th Amendment are the same people who drafted the proposed draft constitution as well. Then why this important difference? What were they thinking when they drafted the 19th Amendment?

There cannot be any such thing as a Parliament that cannot be dissolved under any circumstances – but that is what we have today. Of all the countries that have Parliaments in the world only Norway has a Parliament that cannot be dissolved for any reason until its five-year term is up but in that country, the government always continues in power until the King gives them permission to leave and Parliament never defeats the budget as a matter of custom. With such practices in place Norway can afford to have a Parliament that cannot be dissolved because there is no need to actually dissolve that Parliament, and there is no need in that country even to have a clear majority in Parliament to form and carry on a government. No ordinary nation can afford to have a Parliament that cannot be dissolved but that is what the 19th Amendment saddled us with.

The drafters of the 19th Amendment seem to have belatedly realized the mistake they made by making it impossible to dissolve Parliament even in the event of the defeat of the budget and that is why they have sought to reintroduce in the proposed draft constitution provision for dissolving Parliament if the budget is rejected two or three times. Even though the proposed draft constitution has provisions to correct the mistake made in the 19th Amendment, it has not been passed and the mistake is still law with no possibility of the draft constitution ever being passed into law. Thus we are sitting on a constitutional time bomb.

In order to picture what can go wrong, we have to go back to the year 2001 when President Chandrika Kumaratunga suddenly lost her Parliamentary majority due to defections from her party. At the time, she had more than four full years remaining from her term. The Parliament which had been elected in the year 2000 had more than five years of its term remaining. With the breakaway, the President was staring at the certainty of defeat at the budget vote which was due in a few months in 2001. So, she dissolved Parliament and held a general election in December 2001 and the UNP came into power. That is what corrected the disequilibrium that had taken place in the political system. If the 19th Amendment had been operational at that time, CBK would not have been able to dissolve Parliament and she would have had to sit helplessly while her minority government presented the budget and got defeated.

When defections from the governing party to the opposition takes place as happened in 2001, that is due to the collapse of public confidence in the government. In such circumstances, if the budget is defeated, the only rational course of action will be to call fresh elections. But what will happen under the 19th Amendment is that if the vote on the budget is defeated, since Parliament cannot be dissolved, the President will be compelled to form a new government. But with whom can he or she form a government? In 2001, government MPs were running away from Chandrika. They were fleeing because they did not want to be associated with her as that would have compromised their own political futures. In such circumstances, what is the possibility that a sitting President will be able to find enough MPs to form a government?

Will 19A change political dynamics?

Some may think that because Parliament cannot be dissolved under the 19th Amendment, the political dynamics may change and that there may be MPs who will be willing to form governments even with unpopular Presidents. That possibility does exist because in every political party there are MPs who fail to become ministers and if the position offered is right and there is enough time to enjoy the position say a year or two at least, there may be takers for ministerial positions offered even by the most unpopular President. MPs who accept office in such circumstances will do so with a view to enjoying the perks of office for a limited period and then fading away. That, however, is not how the vast majority of politicians think. After getting elected to Parliament every politician wants to continue there as long as possible and for the most part, he or she will think of the long term rather than the short term. That is the reason why so many UPFA politicians opted to remain with Mahinda Rajapaksa in the opposition and even face unprecedented persecution instead of accepting ministerial positions in the so called national government that was formed in 2015. Subsequent events have shown that the MPs who stood by Mahinda were right to do so because they have a future whereas the others who thought of the short term are now in dire straits.

After seeing the fate of the UPFA politicians who joined the yahapalana government in 2015, will any politician in a future government have the appetite to accept office for an year or two or even three or four years in an unpopular government? Furthermore, after a sitting President’s party has lost its majority in Parliament, and been defeated at a vote on the budget and probably even at a vote on a no confidence motion, how many MPs will want to join such a President to form a government for the remaining period of that Parliament? This is why there are no Parliaments that cannot be dissolved. In that respect, the proposed draft constitution has done the right thing by making provision to restore the President’s ability to dissolve parliament at least when it becomes clear that the incumbent government cannot get a budget passed no matter how hard they try. The usual parliamentary tradition is to allow for dissolution if a budget is defeated, the statement of government policy is defeated or if the government loses a vote of no confidence.

The latter two instances were also provided for in our Constitution as it stood before the 19th Amendment, but they are missing from the proposed draft constitution. While the rejection of a statement of government policy or defeat at a vote of no confidence is a clear indication that the government does not command a majority in Parliament, the real crunch with a stoppage of government functions comes if the government cannot get a budget passed. So, allowing for dissolution at least at this stage is vitally important. But at this moment, what we have is a Constitution, under which Parliament cannot be dissolved under any circumstances not even if the budget is rejected a hundred times. What were the drafters of the 19th Amendment sitting on when they introduced such a provision into the Constitution?

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