25 September, 2020

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Constitutionality Of The Dissolution Of Parliament: An Interpretation?  

By Laksiri Fernando –

Dr. 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. 

Conclusion 

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.        

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Latest comments

  • 6
    1

    Laksri the pretender:

    I thought you believed in Rule Of Law. You advocated going to the Supreme Court. Now that has happend and it has gone againt your man you are challenging the Verdict. Frankly you want to install the CRIMINAL throrough the back door because of your UNDYING LOVE for the THUG.
    My friend he is history so accept and move on.
    He is a liability and will cost the Country dearly.
    RW might be an appeaser but at least he will save the Country being taken over by INDIA and that will happen unless China is checked.

  • 4
    0

    If MS had any decency he should resign and face the full might of the Law for being instrumental in Bribing MPs to cross over to MR. Both should be jailed.

  • 0
    0

    Had the drafters of the 19th A introduced the words “subject to …” in a few places much of the confusion would disappear, eg 70.3 (ii) , 33 (2) (c) to be subject to 70.1 etc. As it now stands LF believes the President can prorogue AND dissolve Parliament at anytime, obviously a view sold to MS, on the strength of sloppy drafting and this document has many, including poor a translation. The absence of such simple care leads one to conclude that they (Dr Jayampathi et al) and the AG’s Department, which was tasked with vetting, were careless or incompetent or both. Since the spirit and intention of the 19th A is quite clear, ie to curb the Presidents powers we must hope that the SC will use this a guide. If not, do not forget the president can even declare war at any time without any restraint. Sadly it means that in future, Sri Lanka may have to seek foreign legal beagles for the 21st A and beyond.

  • 1
    0

    Respectable Pro. Fernando!
    What made you by pass the basic arrangement in Law that special provision overrides general provision. Article 32 and 33 are general and 70 is special one explaining the circumstances under which the President can discharge his duty. as per 32 and 33 If all the above three articles speak about one thing then Article 70 gets priority. Thus you’re wrong.

  • 2
    0

    In regard to the constitution, the intention of the parliament is important. The intention of the parliament is that President has to wait for 4 years and 6 months if he wants to dissolve parliament. In the 1978 constitution, the limitation was one year. Under 70.1 it is 4.5 years. That is the difference. LF is bending over backwards to prove that 70.1 is irrelevant. ‘Under this Article’ obviously refers to 70.1 in the absence mentioning a specific Article. In granting an interim order, the SC must have considered 70.1 prima-facie as a limitation to the power where the President can dissolve parliament, Otherwise, the SC would have dismissed the petitions.

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