Constitutional legitimacy
Posted on November 23rd, 2018

By Lakshman I. Keerthisinghe Courtesy Ceylon Today

The doctrine of necessity is the basis on which extra-legal actions by State actors, which are designed to restore order, are found to be constitutional… The doctrine of necessity has since been applied in a number of Commonwealth countries, and in 2010 was invoked to justify extra-legal actions in Nigeria – Wikepedia

There appears to be a raging controversy in legal and civil society circles over the applicability of constitutional provisions dealing with the powers of the President of Sri Lanka in removal and appointment of a Prime Minister as well as prorogation and dissolution of Parliament. Article 70(1) on powers to summon, prorogue and dissolve Parliament has been referred to on the on-going arguments. Article 30(1)states that the President is the Head of State, Head of Executive and of Government and Commander-in-Chief of Armed Forces. Article 3 grants the sovereign power to the people, which is inalienable. Under Article 4(2) executive power of the people is exercised by the President who is elected by the people exercising their sovereign power of franchise.

The Cabinet of Ministers is charged with the direction and control of Government (Art. 42(1)). The President is a member and also the Head of the Cabinet (Art. 42(3)). In order to empower the President with the maximum liberty and authority, the Constitution vests in him the discretion to decide the suitability of the Prime Minister. Article 42(4) in 19th Amendment provides as follows: ‘The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament’. The opinion of the President cannot be questioned or tested. He is expected to evaluate prevailing conditions and decide the person in the best interest of the people and the country. President is expected to take into consideration all the circumstances and information at his hand in formulating his opinion.

Best precedent is the appointment of Ranil Wickremesinghe in January 2015, when UNP was still having only few seats in Parliament. He accepted the portfolio without any allegation of any procedural unconstitutionality.

Therefore, RW is ‘estopped’ from criticizing the same procedure as unconstitutional, from which he benefitted in 2015.

Logically there cannot be two members in Parliament who can command the confidence of Parliament simultaneously. Principles of interpretation of statutes provide that whenever any law gives power to appoint, it includes the power to remove too. This principle is embodied into section 14(f) of the Interpretation Ordinance of Sri Lanka. Therefore, it is clear that the President has lawfully appointed Mahinda Rajapaksa as the Prime Minister in terms of Article 42(4) of the Constitution read with section 14(f) of the Interpretation Ordinance.

Regarding dissolution of Parliament although the proviso to Article 70(1) of the 19th Amendment states: ‘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.’ The Doctrine of Necessity may be considered at this stage. The doctrine of necessity is the basis on which extralegal actions by State actors, which are designed to restore order, are found to be Constitutional. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this type of extralegal action have been advanced by legal authorities, including William Blackstone.

In modern times, the doctrine was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhhamud Munir validated the extra-Constitutional use of emergency powers by Governor General Ghulam Mohammad. In his judgment, Chief Justice cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing. The doctrine of necessity has since been applied in a number of Commonwealth countries. In a 1985 judgment, Chief Justice of the High Court of Grenada invoked the doctrine of necessity to validate legal existence of a court then trying for murder, persons engaged in a coup against former leader Maurice Bishop.

In conclusion, after considering all relevant matters brought out in the arguments before Court, Their Lordships, the Honourable Judges of the Supreme Court would deliver a suitable and appropriate judgement on the issue of dissolution of Parliament which shall be respected, accepted and adhered to by all the citizens of our motherland as the Supreme Court is the sole authority to decide on matters concerning such Constitutional provisions.

(The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo) Fmr Lecturer Sri Lanka Law College)

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