By C. A. Chandraprema Courtesy The Island

February 17, 2019, 8:45 pm

Under Article 70 (1) in the Constitution before the introduction of the 19th Amendment, Parliament could, at any time, pass a resolution by a simple majority requesting the President to dissolve Parliament. However, after Article 70(1) was amended Parliament cannot under any circumstances be dissolved until the lapse of four and a half years of its five year term unless Parliament requests the President to dissolve Parliament by a resolution passed by not less than two-thirds of the whole number of members (including those not present), voting in its favour. Under both the old article 70 (1) and the new one, even if Parliament passes a resolution requesting the President to dissolve Parliament, the final decision on whether to accede to the request made by Parliament will rest with the President.

What is the rationale for prohibiting Parliament from requesting dissolution of itself by a simple majority and making a two thirds majority mandatory just to make a non-binding request to the President? It’s not as if MPs like whales suddenly manifest a need to beach themselves for no apparent reason. We have had many Parliaments since Independence and so far as this writer knows not a single Parliament has passed a resolution recommending the dissolution of itself. Such instances will be equally rare in all countries that have supreme legislatures called Parliaments. Then why this need to protect the tenure of Parliament from the MPs themselves by making a special majority mandatory just to recommend dissolution of itself?

One could justify limiting the ability of the executive President to dissolve Parliament on the grounds that he or she is outside Parliament and elected separately and if the President is from one political party and Parliament is controlled by another, such a restriction will provide a measure of protection for parliamentary government. In 2004, President Chandrika Kumaratunga dissolved Parliament and held a general election entirely at her discretion. In 2004, there were none of the situations, in which a Parliament may be dissolved before completing its term. No government has lost a vote on a no-confidence motion. No government has lost a vote on the budget. The then UNP government led by Prime Minister Ranil Wickremesinghe had not lost its majority in Parliament either.

What happened in 2004 is that Kumaratunga had the presidential power to dissolve Parliament and she used it. All that may have happened is that the UNP after having been elected to power in December 2001, had lost some of its popularity. Furthermore, according to the results of the 2001 December Parliamentary election, The People’s Alliance vote, when combined with the JVP vote, exceeded the UNP vote. So, when a partnership was brokered between the PA and the JVP to form the United People’s Freedom Alliance, (UPFA) the UNP’s goose was cooked simply on the arithmetic. It was this political assessment that the UNP will not be able to win a Parliamentary election when the PA and JVP joined forces that led to the dissolution and Parliamentary election of 2004. (It may be pertinent to say as an aside that the JVP, which was at the forefront of opposing the dissolution of Parliament on November 9, 2018, was fully supportive of the dissolution that took place in 2004. In fact, it was following that dissolution that the JVP won 40 seats in Parliament contesting on the UPFA ticket!)

Opportunity to play ducks and drakes with govt.

One has to acknowledge that the dissolution of Parliament, in 2004, by the then executive President was based entirely on cynical political calculations. So one can perhaps forgive the aggrieved party if they as a knee-jerk reaction to the events of 2004, resolved to block the President’s power to dissolve Parliament. To do so, they went to the extent of misleading the public as well as the Supreme Court, as pointed out in the previous article in this series which appeared, on Feb. 08. However, it has to be pointed out that they have been a tad more successful in their endeavor than they should have been. Knee-jerk reactions are not based on reason, and the lesson we have to learn here is that no knee-jerk reaction should ever be incorporated into the Constitution.

The 19th Amendment has not only prohibited the President from dissolving Parliament until the lapse of four and a half years of its five-year term but has also effectively prohibited Parliament from recommending dissolution of itself by making it mandatory to have a two thirds majority even to make a non-binding request to the President to dissolve Parliament. This is an irrational and dangerous restriction. The primary responsibility for maintain stability in the country falls on the government of the day. If the President is deprived of the discretionary power to dissolve Parliament, the Prime Minister and Cabinet should have the power to recommend dissolution of Parliament to the President in order to have fresh elections. Or, at the very least, Parliament should be able to recommend dissolution of itself with a simple majority.

By making it mandatory to have a two thirds majority in Parliament to make any such recommendation, the 19th Amendment has brought about a very dangerous situation where the opposition can play ducks and drakes with a government. In Sri Lanka, now under the 19th Amendment, Parliament cannot be dissolved for any reason without a two thirds majority. If a government loses the budget, a no-confidence motion or the statement of government policy, that would be a sign that they have lost their majority in parliament but they will still officially be the government. The government cannot recommend that parliament be dissolved and fresh elections called because it will need the cooperation of the opposition for that purpose. The opposition can by failing to provide that majority, bring about a situation where the government is both unable to govern or to bow out.

Under such circumstances, it is the government that loses face. In the late 1980s, the JVP’s strategy to destroy the UNP government of the day was to ensure, through a widespread campaign or terror that the government, could not govern the country. The same result can be achieved without firing a single shot or beheading anybody under the 19th Amendment simply by not providing the necessary number of votes to dissolve Parliament and to hold fresh elections. MPs can simply absent themselves the way they did during the last meeting of the Constitutional Assembly. If just a few MPs go abroad or have other engagements, the government of the day will have to flounder on without being able to govern or to give up. One option open to them will be to simply resign en masse and leave the task of forming a new government to the President.

However, under the 19th Amendment even the President cannot dissolve parliament unless he is requested to do so by a resolution passed with a two thirds majority in Parliament.

So, we see that everyone is tied up in knots. No one but a madman would make it mandatory to have a resolution passed with a two thirds majority simply to dissolve Parliament and to have fresh elections. But it has happened in Sri Lanka and we are living through that reality. Before the 1978 Constitution, you could do literally anything with a two thirds majority. Sri Lanka was converted from Dominion into a Republic with a two thirds majority. Its name was changed from Ceylon to Sri Lanka with a two thirds majority. Indeed Parliament abolished itself and became the National State Assembly and later once again became a Parliament with a two thirds majority.

A Parliament that cannot look after itself

Even under the present Constitution you can do virtually anything with a two thirds majority in Parliament except changing the sovereign status of the Republic of Sri Lanka, the unitary character of the state, the reposing of sovereignty in the people, the national flag, the national anthem, the national day, the special status accorded to Buddhism, the right to religious freedom, the ban on subjecting people to cruel and degrading punishments or extending the term of the President or Parliament all for which approval by the people at a referendum will be necessary in addition to a two thirds majority in Parliament. There are many things that can be done without a referendum. The system of elections to Parliament can be changed with a two thirds majority. Why then is it necessary to have a two thirds majority in Parliament to simply call a general election?

If Parliament is going to pass a resolution requesting the President to dissolve Parliament and to call for fresh elections, it will only be due to some situation which cannot be resolved without an election. If the members of Parliament cannot be entrusted with the power to dissolve the institution which gives them status and power (which they will naturally do only in the most dire circumstances), how are they to be trusted with the running of the country? If MPs cannot look after their own affairs, how are they to look after the affairs of others? Furthermore, how is it that the drafters of the 19th Amendment as well as the proposed draft Constitution failed to realize that if more than half the MPs in parliament want a fresh election to be held, the country cannot be governed without that process being allowed to take place?

The proposed draft constitution, while making it mandatory to have a resolution passed in Parliament with a two thirds majority to recommend dissolution of itself, has, at the same time, proposed provisions that will enable Parliament to be dissolved if a budget is defeated two or three times. So, a resentful majority desiring fresh elections may not be able to get Parliament dissolved by requesting the President to do so because they lack a two thirds majority. But they will be able to wait until the end of the year and defeat the budget repeatedly with a simple majority to force an election. If Parliament can be dissolved when the budget is defeated, the logical thing to do would have been to make it possible for Parliament to dissolve itself with the same majority required to pass the budget – a simple majority. So, the provisions of the draft constitution have not been designed rationally.

But even that draft constitution is pie in the sky. What we are saddled with right now, under the 19th Amendment, is a Parliament that cannot be dissolved under any circumstances unless a resolution is passed with a two thirds majority requesting the President to dissolve Parliament and hold a fresh election. Those who drafted the 19th Amendment never gave thought to what this did firstly to the franchise of the sovereign people, secondly to the trust and responsibility reposed in their representatives by the people and thirdly, to the government that may happen to be in power whose main responsibility is to maintain a stable administration and take remedial action if they are not able to run a government. Kumaratunga dissolved Parliament and held fresh elections in December 2001 even though she knew she was going to lose that election. Today, because of the 19th Amendment, no President, Prime Minister, Cabinet, ruling party or even the majority of MPs in Parliament can fulfil that basic duty to ensure that there will be no anarchy in the country.