By C. A. Chandraprema Courtesy The Island

The rallying cry of the UNP, the JVP TNA and their allied political parties is that after the introduction of the 19th Amendment, Parliament cannot be dissolved under any circumstances until the lapse of four and a half years, and the only way it can be dissolved before that is for Parliament itself to pass a resolution by a two-thirds majority, making a request to that effect to the President. We have to bear in mind that the UNP-JVP-TNA argument is that Parliament cannot be dissolved under any circumstances – despite repeated defeats of the budget, despite repeated rejection of the statement of government policy and repeated passage of no-confidence motions against the government. In all such instances, only the government will stand dissolved and not Parliament. After each such event it is the President who will have to form new governments. Thus, even though drafters of the 19th Amendment claimed that their intention was to reduce the powers of the President, they have ended up making the President more powerful than he ever was under the original 1978 Constitution.

One has to keep in mind the fact that under the proportional representation system, it is only in 1989 and 2010 that any single political party or coalition has got a clear majority in Parliament. At all other Parliamentary elections in 2000, 2001, 2004 and 2015, the winning party did not receive a clear majority in Parliament. Even though the 2004 Parliamentary election was won by the party backed by the incumbent President, even then the UPFA failed to get a clear majority in Parliament. We saw much the same thing happening at the 2015 Parliamentary elections. Because of this factor, one has to provide for the possibility of a government losing a vote on the budget, a vote on the statement of government policy and losing a no confidence motion. It is now being argued that Parliament cannot be dissolved even if such events take place.

If an incumbent government loses a vote on the budget, a vote on the statement of government policy or a no-confidence motion, what that will mean is that the leader of the party that won the most number of seats in Parliament will no longer be eligible to hold the position of Prime Minister in that Parliament. What then is the President supposed to do? He can then call the leader of the political party that led the campaign to defeat the government in Parliament to form a new government. However, the political forces that came together to defeat the incumbent government may not necessarily unite to form a government. That is very real possibility in Sri Lanka even at present with the JVP saying that they will not support a government formed by the UNP and even the TNA making their support conditional – which means that there is the very real possibility that they may withdraw that support if they are not satisfied. When a government falls in such circumstances, since Parliament still cannot be dissolved, the President will have to cobble together a government with whoever is willing to join and continue till it is possible to dissolve Parliament and let the people decide.

President vested with enhanced powers

Throughout this process, the President will be the central figure around which everything revolves. Thus, contrary to the claims being made that the 19th Amendment reduced the powers of the executive presidency, what they have done in actual fact is to increase the power and importance of the Presidency by blocking the dissolution of Parliament. According to the elections schedule, parliamentary elections take place a few months after a presidential election and the likelihood is that it will be the President’s political party that gets the most number of seats in parliament as well. Thanks to this argument that Parliament cannot be dissolved, if the President loses public support and support within Parliament as well, it will still be he who is required to cobble together a government and continue in power!

We must remember what happened to Chandrika Kumaratunga in 2001. After a hung parliament was elected at the 2000 parliamentary election, within a few months, President Chandrika Kumaratunga lost the tenuous majority she had managed to muster in Parliament in 2001. Then she was forced to call a general election and her party lost and the UNP formed a Cabinet. But now as is being argued by the UNP-TNA-JVP combine, even if a situation like 2001 manifests itself, the President will still have a to cobble together a government from somewhere and continue. All of us who lived through the events of 2001 know that would have been an impossible demand to meet at that time.

Presidents tend to lose popular support very fast during their second term and there could be situations where as in 2001, nothing that a President does will induce parliamentarians to form a government with him or her for fear of the voter’s wrath. What happens then? This is why no one who has any commonsense will draft a constitution that makes it impossible to dissolve parliament. Dissolving Parliament and allowing the people to decide is the only way in which a political deadlock could be resolved. In 2001, CBK had no option but to dissolve parliament and to allow the people to decide and, that is what preserved democracy in this country. Under the provisions of the constitution before the 19th Amendment, parliament could resolve to dissolve itself with a simple majority. So if the incumbent President loses public support and the support of Parliament, the parliamentarians opposed to the President could pass a resolution requesting the President to dissolve parliament and call for fresh elections. Now after the 19th amendment, an unpopular President can carry on regardless because parliament cannot vote to dissolve itself without a two-thirds majority – an impossible target in practical terms. Thus Parliament has been weakened and the hand of the President strengthened infinitely.

There are other dangers too. Just picture the scenario that may take place after the next presidential election next year. A new president will be installed in power by December next year. A few months later, a parliamentary election will be held. Each of the newly appointed institutions will have four and a half years to five years in office. Both parties will enjoy security of tenure because the President will not be able to dissolve parliament without a two-thirds majority in parliament and Parliament will not be able to impeach the President without a two-thirds majority. In these circumstances, it is the President who will have the upper hand because he is the authority that appoints the Prime Minister and the Cabinet and in doing so he has unfettered discretionary power. He can appoint as Prime Minister anybody who ‘in his opinion’ is most likely to command the confidence of Parliament. Likewise, in appointing Ministers, Articles 43, 44 and 45 of the Constitution even after the 19th Amendment clearly Indicates that it is the President who has the final say in appointing and assigning subjects to Ministers, State Ministers and Deputy Ministers.

The subjective selection of the President is still paramount in making these appointments. At the present moment, due to Supreme Court rulings, the President also has the power to appoint as Ministers any of the 225 MPs in Parliament. When the President and Parliament both have 4 to 5 years of their tenure left, the President’s power will be at its peak. After the next Presidential elections in December 2019, and the Parliamentary elections that will follow in a few months, what the new President will get is in fact a harem of 225 MPs who he can use at will. So long as the President and parliament have four three, two, or even one full year of tenure left, he will be able to offer Ministries and other perks to attract MPs from any party to form a government. If the dissolution of Parliament before the lapse of four and a half years is not allowed, the political party system is going to be the main casualty. The political party will become merely a vehicle to get into Parliament. Once you are in parliament, you are a free agent deciding to sit in government or in opposition as your own needs and fancies guide you.

We have to bear in mind that serving as a Minister is not a case of leaving one’s political Party, it is a case of serving one’s country at the behest of the President who wields the sovereign people’s executive power! Or at least that is how it’s portrayed. We have already had a taste of this in the past. When Mahinda Rajapaksa became President in November 2005, he inherited a minority government in parliament. So he took some MPs from the UNP and cobbled together a government and went forward and the UNP was crying foul saying that he was destroying political party system in the country. What the 19th Amendment has done is to institutionalise that situation for all perpetuity. Due to the proportional representation system, the likelihood is that except in rare instances, the political party winning the election will not have a clear majority in Parliament or will have only a slim majority. It is at this stage that the entire Parliament becomes the President’s harem. In 1994, the PA which had 105 Members in Parliament formed a government. In 2001, the UNP which had 106 MPs and in 2004, the UPFA which had 105 MPs formed governments.

Today, however, in the event where no political party gets a clear majority in Parliament, the tendency will be for the President to take the initiative to start making ‘kottu rotti’ governments taking a little bit from here and a little bit from there. Since Parliament cannot be dissolved, the President may end up making ‘kotthu roti’ governments more than once. Providing there is at least a year of tenure left, there will be many MPs who will betray their voters and political parties to gain office which, if he remains subordinate to his party hierarchy, he may never gain in his lifetime. When it comes to the tail end of the tenure of Parliament and of the Presidency when it will no longer be possible to attract MPs with the lure of office, he will end up doing a solo lap with the Ministry Secretaries and no Cabinet.

Possibility of 113 man ministerial teams

Another issue that will arise if Parliament cannot be dissolved is that the MPs will have security of tenure and everyone will be extracting the maximum pound of flesh for their support of any government. When the stability of tenure of an MP increases, the stability of governments formed with the participation of such MPs decreases in direct proportion because MPs make all kinds of demands to extend their support to a government formed even by their own party. We have seen backbenchers ganging up to make demands under all governments. We have seen back bench MPs holding separate press conferences under all governments. It is not for nothing that the power of dissolution became an integral part of the Parliamentary tradition. The Parliamentary system cannot function without it. The possibility of dissolution and the prospect of having to face the people at an election is one of the key incentives to remain loyal to one’s political party and to continue to support it in Parliament.

This is why no country in the world that has a parliamentary form of government (except Norway, as the former President pointed out in his recent speech) has ever sought to prevent Parliament from being dissolved until the end of its tenure. Such a restriction does not empower Parliament – it empowers the person who is cast with the responsibility of forming governments and continuing till it is possible to hold an election. If the power of dissolution is removed for four and a half years, that will be an open invitation to the MPs elected to sell themselves to the highest bidder during that four and a half years. The bidder will of course always be the President. Even though the 19th Amendment purports to have reduced the powers of the president it has actually enhanced those powers by creating a situation where after a parliamentary election, the president can do anything he likes in Parliament disregarding all political party boundaries. Someone may say that blocks have been put in place to prevent the President from dissolving Parliament to prevent him from abusing that power. No president will dissolve Parliament without carefully considering matters, because if he dissolves Parliament and his party loses the ensuing Parliamentary election that will undermine his legitimacy and end his political career. The president himself is elected and the dissolution of Parliament will affect him and his political party as well.

So dissolution will in practice rarely be overused or abused. But when it comes to forming and dissolving cabinets, the president can do that as often as he likes with little or no consequences because the President as the head of the executive and Cabinet can continue to rule the country through the ministry secretaries despite frequent changes of ministers. We heard of such a one man show being run by President Premadasa. What the 19th Amendment has done in effect is to create the legal framework necessary to make the Premadasa style one man show the norm in Sri Lankan politics.

According to the provisions of the 19th Amendment, when a national government is formed, parliament can decide to appoint any number of ministers. A national government is defined as a government formed ‘between the largest political party in parliament and other parties’. It does not say how many political parties have to join a national government – it could be just the party that gets the most number of seats in Parliament plus one other party and together they can decide to appoint if necessary a total of 113 cabinet, state and deputy ministers. Thanks to the party system it was possible to have at least a few MPs who would function as backbenchers. But with it not being possible to dissolve Parliament despite repeated defeats of the budget, or repeated rejection of the statement of government policy and repeated passage of no confidence motions against the government, the tendency will be for the President to appoint all 113 MPs necessary to maintain a bare majority to some kind of office, to keep them happy and to minimize the possibility of defections.

All of the above in varying combinations will be the direct consequence of preventing the dissolution of Parliament until the lapse of four and a half years or the passage of a resolution requesting dissolution with a two-thirds majority.