By Laksiri Fernando –
“The only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically, but as a whole and find its meaning by legal reasoning.” ~ Garfield Barwick (CJ, Australia, 1964-1981)
What is important in understanding the provisions of the Constitution in respect of the powers and functions of the President with regard to the dissolution of Parliament is to read carefully the provisions objectively and without preconceived values or advocacy. As Sir Garfield Barwick said, ‘read the language of the constitution itself’ and I must add – without dragging into what others’ have said, or what must have been desirable given political objectives or intentions in a particular amendment.
There are two important Articles 33 and 70 which give powers and also prescribe certain limitations in respect of dissolution of Parliament by the President. The first Article 30 is in Chapter VII titled ‘The Executive’ and subtitled ‘The President of the Republic.’ Second, Article 70 is in Chapter XI titled ‘The Legislature’ and subtitled ‘Procedures and Powers.’
Article 33: Duties, Powers and Functions of the President
Let me first quote Article 33 in full, highlighting in bold what might be most pertinent.
Article 33. (1) It shall be the duty of the President to
(a) ensure that the Constitution is respected and upheld;
(b) promote national reconciliation and integration;
(c) ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in Chapter VIIA; and
(d) on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.
(2) 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
(a) to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament;
(b) to preside at ceremonial sittings of Parliament;
(c) to summon, prorogue and dissolve Parliament;
(d) to receive and recognize, and to appoint and accredit Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents (g) declare war and peace ;
(e) to appoint as President’s Counsel, attorneys-at-law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude. Every President’s Counsel appointed under this paragraph shall be entitled to all such privileges as were hitherto enjoyed by Queen’s Counsel;
(f) to keep the Public Seal of the Republic, and to make and execute under the Public Seal, the acts of appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the Chief Justice and other judges of the Supreme Court, the President of the Court of Appeal and other judges of the Court of Appeal, and such grants and dispositions of lands and other immovable property vested in the Republic as the President is by law required or empowered to do, and to use the Public Seal for sealing all things whatsoever that shall pass that Seal;
(g) to declare war and peace; and
(h) to do all such acts and things, not inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage the President is authorized or required to do.
Interpretation of Article 33
As anyone can read from section 2 (c ) of Article 33, there is no limitations or conditions attached to the powers of the President to summon, prorogue and dissolve Parliament. There is no other interpretation that could be given, as far as I am concerned.
The section 2 (h) also amounts to some reserved or discretionary powers given even to nominal Heads of State in many democratic countries.
Article 70: Procedure and Powers of the Legislature
Article 70 in full is given below, highlighting in bold what might be most pertinent to this interpretation.
Article 70 (1) 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.
(2) Parliament shall be summoned to meet once at least in every year.
(3) A Proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation :
Provided that at any time while Parliament stands prorogued the President may by Proclamation –
(i) summon Parliament for an earlier date, not being less than three days from the date of such Proclamation, or
(ii) subject to the provisions of this Article, dissolve Parliament.
(4) All matters which, having been duly brought before Parliament, have not been disposed of at the time of the prorogation of Parliament, may be proceeded with during the next session.
(5) (a) A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.
(b) Upon the dissolution of Parliament by virtue of the provisions of paragraph (2) of Article 62, the President shall forthwith by Proclamation fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.
(c) The date fixed for the first meeting of Parliament by a Proclamation under sub-paragraph (a) or sub-paragraph (b) may be varied by a subsequent Proclamation, provided that the date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the original Proclamation.
(6) Where the poll for the election of the President is to be taken on a date which falls between the date of dissolution of Parliament and the date before which Parliament is required by paragraph (5) of this Article to be summoned to meet, Parliament shall, notwithstanding anything in that paragraph, be summoned to meet on a date not later than four months after the date of dissolution of Parliament.
(7) If at any time after the dissolution of Parliament, the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier.
Interpretation of Article 70
There are two procedures provided in the constitution in Article 70 in dissolving Parliament by the President.
First is under 70 (1) when Parliament is not prorogued, and in session, where the President may dissolve on the request of Parliament but by a resolution passed of not less than two-thirds of the number of members (including those not present), voting in its favour.
Second is under Article 70 (3) (ii), which provides that at any time while Parliament stands prorogued, the President may by proclamation dissolve Parliament subject to the provisions of this Article (English version).
There can be a speculation as to what it means by ‘subject to the provisions of this Article? Could it mean 70 (1) where it requires a two thirds approval? Or something else? It cannot possibly be about 70 (1) and ‘two thirds majority’ because the Parliament is dissolved. The present dissolution, in other words, is under the circumstances of a prorogation where 70 (1) cannot apply.
In the Sinhala version, what it says is not ‘subject to the provisions of this Article’ but ‘subject to the provisions of this constitution’ (‘me viyawasthawe vidividana valata yatathwa’). It is a general condition and not specific.
Careful examination and interpretation of Article 33 (particularly section 2 (c )) and Article 70 (particularly section 3 (ii)) show there is no constitutional impediment for the President to dissolve Parliament under the conditions of prorogation.
If the prorogation is proved unconstitutional, then it would be possible to prove the dissolution unconstitutional. However as far as I know, no one except Nagananda Kodituwakku has filed a case against the prorogation.
The other rare possibility is to prove that the dissolution is against any other ‘important provision/s of the constitution.’ It has to be quite specific since the provisions permitting dissolution are specific both in Article 33 and Article 70. For this matter, one also has to argue on the basis of the Sinhala version (perhaps the Tamil version).
As far as the scope of this (my) article is concerned, I couldn’t find any specific provision, except Article 33A which says “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution…”
However, if this is an overarching and overall limiting condition that the executive President should submit to, then the inclusion of such in the 19th Amendment should have required a people’s referendum. This article co-existed with the powers of the executive President before, and should be the case even today with nuances. Otherwise, our whole constitutional system will collapse and an anarchy would be created.