1 December, 2020

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Government Has No Two-Thirds Majority Mandate

Constitutional Crisis: Government Fails To Understand That It Has No Two-Thirds Majority Mandate

By Eran Wickramaratne

Eran Wickramaratne MP

Annually the Government presents to Parliament its income and expenditure statement, and how it intends to finance the deficit between income and expenditure. With the exception of a couple of years since independence in 1948, the Government Budget has been in deficit.

The Budget process begins when the Government presents an Appropriation Bill in Parliament, followed a month or so later by a speech in Parliament known as the Budget Speech made by the Finance Minister. The Budget Speech contains proposals for raising revenue through taxation. On completion of the Budget Speech the Budget debate begins.

The tabling of the Appropriation Bill is known as the First Reading, while the debate that follows the Budget Speech is known as the Second Reading. During the Second Reading the debate takes the nature of a plenary session of Parliament where members focus largely on the macro-economic philosophy, economic strategy, plans and direction, income, expenditures, cash flows, debt, savings, investments, economic growth, employment, trade, exchange rates, reserves and so on. At the end of about a week’s debate, a vote is taken. Then the Budget debate takes on the form of a Committee discussion for about two weeks.

For the most part, the whole of Parliament sits as a Committee debating the financials and workings of Ministries. Each day a vote on the debated Ministry is taken. At the conclusion of the Committee Stage, Parliament meets in a plenary session and votes on the Budget. It is only then that government funds can be utilised for different expenditures. The people through their representatives vote to collect taxes and also how those taxes can be utilised. Citizens also approve how the excessive expenditure being incurred could be financed through borrowings.

Appropriation Bill Unconstitutional

After the Appropriation Bill was tabled in Parliament, it was challenged in Court for its inconsistency with the Constitution. A Bench comprising Justices Shiranee Tillakawardane, Priyasath Dep and Eva Wanasundara determined that Clause 2(1) (b) and 7 (b) of the Appropriation Bill were inconsistent with the Constitution.
Counsel agreed with Court that the inalienable sovereignty of the people must be exercised by Parliament under the doctrine of public trust in terms of Article 4 (a) of the Constitution. The Court emphasised that proper fiscal accountability is the bedrock of good governance. Attention was drawn to the fact that dominant control of Public Finance by Parliament is enshrined in Article 148, including the control of the source of finance.

The Court ruled that Parliament’s approval of a borrowing limit as specified in the Appropriation Bill and the lack of Parliamentary supervision, scrutiny and control of the terms of the loan, interest payments or the period of payment, was tantamount to the abdication of the power of control over fiscal matters. When the case was made that such information would be available subsequent to the contracting of the loan, the argument was rejected by Court.

The Judgment read, “This anomaly could be rectified if the impugned clause is amended to read, that prior to obtaining the loan, the terms of such loan must be approved by Parliament. If not this Court is of the view that Clause 2 (1) (b) would be unconstitutional as under its scheme, Parliament will fail to exercise the due and full financial control envisaged under Article 148…”

Clause 7(b) permits the Minister to withdraw sums allocated for a specific purpose and/or from the Consolidated Fund, at his will, with no controls. The clause has no limitations, nor does it require the sanction of Parliament. The Court determined that to allow the clause to remain as it is, will obstruct full Parliamentary fiscal control at the macro level. The Court found no justification in giving unilateral decision making to the Finance Minister over public finances outside Parliamentary control.

The principle enunciated in the 1986 Determination states, “It would be anomalous for Parliament which has to exercise financial control over expenditure by the Executive to delegate that power to the very authority which it has to supervise without devising suitable checks to control the use of that power.”

It was the view of Court that the Finance Minister could not be given such unfettered power to vary the Appropriation Bill or its Schedules. The Court’s suggested cure was to amend the Bill to read that it could be done only with Parliamentary approval. Therefore Clause 7(b) was also declared inconsistent with the Constitution.

The Court had previously stated that Parliament is not expected to micro manage the finances of government, and states that this is not the spirit of the Constitution. So the Court’s restrictions on Clause 2(1) (b) and 7 (b) were after taking note of concepts and practical realities.

Point of order

After the end of the Second reading prior to the vote being taken in Parliament, I sought clarification from the Speaker as to the basis on which he was calling for the vote as we were to vote on a Bill that had been declared unconstitutional. I also wanted to know whether the government was proposing to amend the Bill. If so, the details of the Amendments should be presented to Parliament. After some debate, the Speaker proceeded with the vote on the basis that the Bill will be amended at Committee Stage.

We voted against the Bill stating that the Bill was unconstitutional. Prior to the Final Vote on 8 December the Government presented amendments to the Bill. The amendments enabled the reporting of details of loans taken and also details regarding shifting of expenditures from one category of expenditure to another. This was to be done through the Final Budget Position Report which is required to be tabled in Parliament under Section 13 of the Fiscal Management (Responsibility) Act No. 3 of 2003. The Amendment did not address the Supreme Court’s requirement that prior approval of Parliament was required. The Government as usual was not in a mood to compromise on its pre-determined course of action, irrespective of the fact that it violates a determination of the Supreme Court.

The possible way forward on the amendment was to provide for a broad term sheet on borrowings to have prior approval of Parliament and to restrict the Finance Minister’s discretion so that Parliament retained “some amount of actual and direct control however nominal” as was stated in the 1986 determination. An amendment could have also been worked out where any change in expenditures could have had the prior approval of the Cabinet of Ministers rather than the Minister. If the Government and the Judiciary worked in harmony such an amendment could have been referred to the Supreme Bench for concurrence or further amendment. However, that was not to be.

The making of a Constitutional crisis

The Speaker ruled that he had been advised by the Attorney General that the Amendment was in order if a special majority in Parliament could be obtained. The Supreme Court had not suggested such a remedy in its determination. The Government’s modus operandi is to push through unconstitutional Bills such as Divi Neguma, the Appropriation Bill, and controversial and unjust processes as seen in the impeachment process of the Chief Justice, utilising its two-thirds majority in Parliament.

The Government fails to understand that it has no two-thirds majority mandate given by the voter but an artificial majority created by crossovers in the House of Parliament. Many cases are pending in the courts against such crossover Members of Parliament. It is yet to be determined whether these Members of Parliament should be unseated for violating the sovereignty of the voters.  A government which enjoys such majority on an artificial basis, where court is yet to determine the validity of such crossover, is attempting to change not only a flawed Constitution but the very nature of the state by devious parliamentary manoeuvres.  The refuge of the citizen is in the fact that Article 120 of the Constitution states that the Supreme Court shall have sole and exclusive jurisdiction to determine whether any Bill or any provision thereof is inconsistent with the Constitution. By violating the determination of the Supreme Court the Government is creating a Constitutional Crisis.

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Latest comments

  • 0
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    This is a good point. Also even if they do have a 2/3rd majority they cannot go against the constitution of the country and play out tax payers money.

    It seems that the Govt is playing pandu with peoples money and keeping everything secret using a 2/3 majority. This is major scandal and if proven will have far reaching effects to the IMF / World Bank / ADB who lend money only on principles of accountability and good governance. Govt will fail on both counts and be deprived of any funding in the future.

    Best is for the public and opposition to be alert and highlight all such cases of corruption.

    • 0
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      A vast majority of the general public including most of the opposition are idiots. Economic sanctions and international pressure might work.
      One day in the future the worm will turn. Let’s hope that one day the weak and obedient opposition and majority will start to behave more confidently and take back their country that has been hijacked by one family and its henchmen.

    • 0
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      For Eran W, especially, this is pretty stupid. Eran W is shifting his and his party’s responsibility as elected Members of playing the role of the people in parliament to empty verbal space.
      The UNP and other Opposition parties should have walked away from the 2nd Reading, stating very clearly they would not participate in debating unconstitutional bills. But the UNP and the opposition has only allowed the Rajapaksa regime to legitimize all its work in parliament by participating and voting in parliament.
      There is no point in merely writing these, thereafter.
      Amaranth

      • 0
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        I agree. The public hardly knows, hears or reads what is happening in parliment. If the opposition were to walk out in protest that would have a far greater impact. Voting against, simply gives an air of legitimacy to an illegal bill and serves no purpose since the outcome is a foregone conclusion.

        UNP should petition the SC on this matter and get a ruling even if the Govt does not comply. These are matters which need to be taken up now as the effects will be felt in the future. Same should have been done with 18A. Then it could be appealed or quoted at a future date.

      • 0
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        @A

        Totally agree with you except with your word, “stupid’. He’s not stupid, but this is the role he and his leadership play.

        That’s why he doesn’t answer reader’s questions, probably holidaying overseas (like his leader) as you very correctly say “shifting …responsibility” after writing “constitutional crisis”. And a more pointed analysis is in one of Kusal Perera’s pieces, how and a little of why UNP is playing this role.

  • 0
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    Hon. Wickramaratne,

    Fine thoughts and thanks for sharing. Some questions ( if you’d find the time and need to respond to):
    a) Isn’t it mentioned in each of the supreme court determinations what are the requirements to make unconstitutional provisions to be made constitutional? What is the legality of AG advising on these steps ( and Speaker quoting him in the House sessions) as you mention “The Speaker ruled that he had been advised by the Attorney General that…”?

    b) Do you think as the main political party in the opposition, your party and the leadership have taken all the avenues within legal limits against what you mention as unconstitutional measures ( for example by limiting yourself to vote against, as you write here)?

    These are not rhetorical or “gotcha you” questions, but hoping that you enjoy at least some confidence and trust of the party leadership to express your informed opinion, beyond what is written here.

  • 0
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    Very soon Supreme court should give its verdict on this unjustified cross overs creating a fake 2/3rd majority.

  • 0
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    Eran W is a former banker and a qualified econmist.
    I agree with his contentions.
    The “cross overs in parliament” approved by former CJ Sarth N Silva was the ‘death knell’ of pariamentary democracy in sri lanka.
    MPs were “bought over” for cash,perks,bogus portfolios etc.and betrayed their parties and voters.
    Thus this parliamentary has no moral authority to pass important bills with this “slave majority”.
    This whole imbroglio has been precipitated by the ‘defeat’ of the Divineguma Bill which favoured the total supervision/expenditure of Rs 80 billion of peoples’ assets IN SECRET,by Basi Rajapakse, when the supreme court ruled that the bill must be approved by all provincial councils.
    The northeast council,made non-functional by an unlawful military regime could not approve it.
    Thus,the government caused its own demise by its suppression and oppression of the NE peoples.
    Sarath N Silva also “excused” the gross misappropriation of funds donated for welfare of tsunami survivers,by Mahinda Rajapakse.
    He has admitted this indirectly. This enabled MR to become what he is,today.

  • 0
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    With all this blunt occurings, is it expected that the WB,IMF,ADB etc
    are acting blind or are they being bribed by FM Officials to look the
    other way?

  • 0
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    Eran Wicramaratne MP

    What you have described appears to be a blatant violation of the peoples sovereignty enshrined in the constitution. The government members in the parliament have disregarded their constitutional duty towards people in spite of what was pointed out to them by the Supreme Court.

    So, what kind of punishments will await for them. Will there be a situation in near future to a judicial review of such violations of trust and if convicted to suspend the civic rights of the perpetrators, so they will not be able to contest in future elections.?

    Or will you prefer to forget it so you can do the same thing when in Power?

  • 0
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    Thank you Mr.Wicramaratne for your most erudite analysis of the quagmire that the government is sunk into through their own ignorance and disrespect of the constitution which they consider is malleable through corrupt practices and aggression bolstered by a fake notion of having a two-third majority in the house. The two-third majority is a mere numerical order that had been garnered through a duplicitous behavior of pole-vaulters from the opposition made possible by a myopic judgement of a lunatic ex-chief justice which had succeeded in making a mockery of the concept of sovereignty of the people.The government should understand the simple logic that sovereignty resides in the people of which they keep shouting hoarse in the house but are averse to accept that they do not have the popular vote to represent a truly two-third majority despite having the individual heads of some sixty odd spurious opposition pole-vaulters in their fold sans the popular support. The entire opposition should bind together in getting this demonic stroke of jurisprudence by Sarath Silva revoked from the statute books. For the sovereignty of the people to prevail Silvas’ judgement has to be overturned and transcended.This looks to me a much bigger crisis than the present one to the independence of judiciary.

  • 0
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    I think the time is right to bring a non-confidence motion against the Speaker. This should be done soon after the cabinet reshuffle as there will be more unsatisfied parliamentarians. Unless the president appoints Senior Supervising Ministers to the existing Supervising Ministers so that every one in the Parliament is a minister.

    • 0
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      I think the courts should hurry up and finish off these cases that are pending. This is one big problem with our legal system they take years and years to give judgements. As a result the general public is cautious about going to cort for anything because they are worried that they will have to file for bankruptcy thereafter.
      After all there are good things the judiciary could learn from the parliamentary commission!!!! Super fast judgements!!!!
      Mr Wickramaratna is spot on when he says this is a bought majority. I think the UNP should go to court to get. The Sarath Silva judgement on crossovers changed. A n individual or a group of UNP ears from the Kgalle district and file a fundamental rights case against the lady pabawathi ,saying they did not vote for the set of policies she now represents. Or what ever and ask for a larger bench to review the SS judgement. Don’t you think now is a good time, as the Judiciary would not be biased ,just now. It may also help their cause.

  • 0
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    why not address the artificial majority issue. the rulings by sarath n silva and lack of leadership by your leader are mostly responsible for our current predicament. while many maybe angry at the rajapaksa’s the very fact that the opposition is impotent is very much an issue here. neither the people of this country or our friends abroad see an alternative to this regime and are forced to play ball with the incumbent. while you may not at this moment be able to do something about ranil wickremesinghe, you might want to look into the possibility of rectifying the damage done by sarath n silva. it is time to reverse the laws on crossovers and honour the peoples’ sovereignty.

  • 0
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    Changing political parties was misearble of traditions of since 1948 after won indepandeace in the Island of Parliminenrty politics. Crossover member of Parliment form opposition to govern party was however normal in national politics.
    Under JRJ-UNP it was NOT possible ,he had decided to extented Parliment peroid FIVE-YEARS without going elecation in 1982 to 1988.A.E Gunasinghe, Bernard Aluwihare, Philipe Gunawaradan, Dr W.Dhanayake, Willim De Silva.R.E Jaytilake, C P de Silva, Mahanama Samraweera, Asoka Karunaratna,Anura Banadarake, Dr Rjitha Senartana of Mahajaa Party to UNP then back to SLFP, Loku Athla allies Nimalsiri Jaysinghe of JVP, Mahind Wijaeseka of JVP, Regional Cooary of ex-JVP cum member of Dhamaraseks groupe,Dr Dayan Jayatelake of Mahaja Party to UNP ,then SLFP….?Dallas Allparuma of JVP,and Managala Samraweera form SLFP to UNP as like his FATHER; SB Dissnayake SLcp to SLFP,the to UNP again to SLFP, Bandula Gunwaragdna MEP to UNP and back to SLFP.
    Dr Karu Jayasiriya UNP to SLFP and back to UNP.There are large number of Leading politicians are crosseover POLITICS ARE PRINCIPLES OF DEMOCRACY IN SRI LANKA.
    ALWAYSNGE LEADING POLITICIANS HAD BEEN CHANGE MANDATED CROSSING POLITICAL LINES FREE OF CROSS-BORDER MOVEMENT, ACCORDING TO VESTED INTEREST OF POSITION, POWER ,POST AND PAYMENT OF SINCE 1948.Mr Euan Wickamanayake this is simple PARTY politics of Sri Lanka.

  • 0
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    Isn’t there any lawyer to request the SC to reconsider its (in fact Sarath N Silva’s) ruling that cross over is OK with a bench of 7 justices, considering it as a nationally important matter?

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