26 August, 2019

Blog

On Dissolution Of Parliament

By Jayampathy Wickramaratne

Dr. Jayampathy Wickramaratne PC

There is speculation that Parliament will be dissolved. Arguments have been made for and against the right of the President to dissolve Parliament at will, at any time.

It is a golden rule that in interpreting a Constitution, the Constitution as a whole must be looked at, not at just one provision in isolation. If the issue is related to an amendment made to the Constitution, we need to look at the corresponding provisions before such amendment. The intention of the legislature in amending the Constitution must be considered. If the amendment was consequent to a pledge made at an election, then the circumstances of that election must also be considered. Constitutional provisions cannot be read in isolation, in a vacuum.

Before the Nineteenth Amendment that came into force on 15 May 2015, the Constitution gave the President a near-unbridled power to dissolve Parliament at will. Article 70 gave him the power to so do, subject to just one limitation. If the previous Parliament had been dissolved prior to it completing its six year term, then the President could dissolve Parliament only after one year.

At the Presidential Election of January 2015, one of the main issues raised was the executive presidency. The forces that supported the common candidate were clearly for limiting Presidential powers and strengthening Parliament. One does not have to labour the point.

The Nineteenth Amendment, which was passed with just one Member of Parliament opposing it, reduced the term of Parliament to five years. Provisions that Supreme Court held required a Referendum were amended or dropped. Article 70 of the amended Constitution restricted the power of the President to dissolve Parliament. It now provides 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.” Thus, Parliament can now be dissolved by the President in the first four and a half of years of its term only if 150 Members of Parliament so request by a resolution passed in Parliament. The wording is clear and unambiguous.

Those who argue that the President’s power to dissolve Parliament is unlimited point out to Article 33 (2) (a) which states: “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) …..
(c) to summon, prorogue and dissolve Parliament…”.

It is argued that Article 33 (2) (a) overrides Article 70. Article 33 only declares some of the general powers of the President. The manner in which and the conditions under which that power of dissolution can be used are given in Article 70. That Article states that dissolution shall be by Proclamation. Then it goes on set down the clear limitation that the President cannot dissolve for four and a half of years unless Parliament so requests by a two-thirds majority. Any power that the President claims under Article 33 (2) must not be in violation of express provisions of the Constitution. The words “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…” cannot be used to override expressly laid down constitutional limitations on the powers of the President.

Take Article 33 (2) which provides in sub-paragraph (f) that the President has the power “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…”

Can the President take cover under this provision and appoint the Chief Justice and other judges of the Supreme Court on his own? Clearly not, because Article 41C requires the approval of the Constitutional Council for such appointments.

Article 4 says that the President has executive power. Can the President make appointments to posts in the public service citing Article 4 in isolation, disregarding express constitutional provisions relating to the Public Service Commission?

If the argument that the President can dissolve Parliament at any time at will is correct, then Parliament can be dissolved by the President just one day after the new Parliament meets, even if he had dissolved the previous Parliament before it completed its full term. This was something that the President could not have done even before the Nineteenth Amendment. This shows the absurdity of the argument.

*Jayampathy Wickramaratne, President’s Counsel and Member of Parliament

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  • 0
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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

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      It is sad that every one whether they are experts on the subject or not, they try to come up with their own explanations, theories to defend their side. Unfortunately all of them kill their conscience in order to justify the murderers, cheaters, drug dealers. I don’t know what does constitution tells about the murder of Lasantha, murder of journalists and human rights activists, murder of Wijekumaranatunga, murder of Rohana Wijeweera and murder of Pirabhaharan Family. I don’t know what the constitution tells about buying and selling of MPs., getting bribes from Foregin investors. I don’t know what the constitution tells about political and military coups.
      Constitutionally the President may have the power. But what he did is acceptable morally or not? Why couldn’t he remove prime minister first before appointing the other? Why he is afraid to bring this into courts if he right? The misuse of power become norm in this land.

      • 2
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        STUPID AJITHA: IT IS you people who should go to Courts. IT is you who loses income.

        • 0
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          YOU JD IS the real STUPID PERSON & NOT AJITH.

  • 6
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    It’s sad to see how Jayampathi Wickramarathna now purposely forget about the Supreme Court ruling mentioned some sections requires not only the 2/3 majority but also the Referendum. Prevailing provision of the Constitution ,33 (2) C , was incorporated to evade a referendum.

  • 7
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    best solution to this problem is to impeach Maithri with support of all parties. Mahinda, Ranil and Anura, and all should join hand in hand to impeach Maithri for his wrong decision and for his personal greed. He created this chaos without predicting consequences..
    He is not capable leaders to make political decision.. He has been shaky in his decision making. He is indecisive for the last 3 three years and half. So, why not we impeach him now and install a care take government with or without MR AND Ranil..
    that is only quick solution we have now..
    otherwise, MS will bring more gridlock at the expense of the national interest.
    We must put the national interest over personal Interest of MS
    why not we think like. this.

  • 3
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    The interpretation of the Constitution by President MS and his advisers is piece by piece like eating Hoppers.First a bite,then a little katta sambol, then another bite etc etc!

  • 6
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    If MaRa could join RW and ALL OTHER PARTIES in Parliament to Impeach President MS that would be his finest hour, as good as having won the war. Besides it will be sweet revenge for the betrayal.

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    Where did you get your legal qualifications from, and how, Mr Wickramaratna?

    Your ‘sacred’ 19th amendment was Ranil’s insurance against being sacked due to inefficiency and dishonesty again. It was your attempt to stealthily transfer the executive power given to the president by the people to a PM who couldn’t win an election if his life depended on it.

    Only the rogues involved in the 2015 conspiracy will try to cite this ‘hora’ 19 as the sacred constitution of Sri Lanka We reject that.

    If President Sirisena knowingly breached this crappy piece of paper, he ought to be congratulated.

    Down with you and federalism.

    • 6
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      Jayampathy Wickremaratne and CB got expelled from the Chemistry Dept at Peradeniya University in 1972 for copying. After that they started a tuition class at Pushpadana Hall in Kandy to support themselves. (I was their first student.) Although the tuition business flourished, later both of them moved to Colombo and joined the Law College. That’s how his “illustrious” career began.

      • 0
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        Jayampathy went back to Peradeniya and got a PhD. Dr. Jayasingha who chaired the disciplinary committee in 1972 finally supervised his PhD thesis. It is published with a second edition and is the standard text on fundamental rights used in all universities and by judges and lawyers. Yes, he made a mistake and was punished. He atoned for his sins.

  • 1
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    Dr.Jayampathy
    You have presented the point as lucidly as possible – yet, maybe incomprehensible to the lunatic fringe. Can’t help!

  • 0
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    We are in a State of Emergency. We are well past the stage where discussions as to whether the dissolution of Lankan parliament, should it take place, breaches the constitution or not.
    .
    We must ask “Do we have a coup d’état to handle?”

    • 0
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      Dear Mr Pillai,

      I think the constitutional assembly earlier (post 26th Oct) was the coup d’état in every sense of the word. Now we have a real chance of “rewriting the constitution altogether ” and my personal wish list for the major political parties revised election pledges/manifestos are for – removal of the Presidential post, dissolving PC’s, Compulsory military service for all, ban all parties with language/race/ religious tags, National security act to put away anyone discuss race/divisions of the country and any another National questions, 3 language education for all, environment takes centre stage in all our future planning, Memorial for all the Mother Lankan Children who died since 1948 and a National day holiday for mourning/remembrance and to clean the country up together of all rubbish/trash and get involved in recycling activity, electronic and finger printed National IC’s, air tight such no foreigners will ever exploit our children problems in the future, a well trained dedicated police and armed forces to take care of their Nation, A technocrat education centre to groom next generation of the elected officials of the country in administrative skills, a fully written job spec for all the elected officials, parties should post select Sinhala speaking candidates in Tamil speaking areas and vis a vis. time the Indian Tamils be fully assimilated into Sri Lanka and no separate parties and separate living spaces too, regular TV question time programs for the politicians/civil servants, social workers, pressure groups to answer public.

  • 4
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    Jayampathy is another crook joins hands with Karu and Ranil to save the New King from any legal responsibility for violating the constitution in order to sack PM, for which EP did not have authority.
    So far Jayampathy has not asked the Supreme Court to issue an injection against president action on Dismissing PM.
    Jayampathy thinks this type of saving of New King will save Old and New Kings from War Crimes. Jayampathy is going to be doomed. It is not easy to get rid of UNHRC resolution 30/1 as easy Jayampathy got rid of his own 19A in dismissing PM.

  • 3
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    Good! Now write a new constitution. Just one line would do.

    “The country should be governed by he who controls the largest number of thugs and posses the largest amount of funds regardless of its source and origin”

    This must be Prabakaran’s revenge from beyond the grave.

  • 0
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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 3
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    19th amendment is an undemocratic act. There is no democracy in the world that says a parliament has to complete 90% of its term before dissolution. It was created to support a PM who could not obtain a parliamentary majority and to protect him through another farce called the national government which increased the cabinet and state ministers to keep them happy. The lawyers who write constitutional amendments to fulfill political projects and foreign agendas instead of the future and independence of the country are a disgrace to our society.

  • 0
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    Irrespective of the pros and cons of the origins of the 19th amendment and who it sought to favour, it has been now flouted at the will of a president who is fast losing the plot. What will now happen is, if the supreme court gives the go ahead to the Elections Commissioner, elections will be held, MR faction will ride to power, there will be more cross-overs and the constitution will be changed with a two thirds majority allowing MR unlimited terms as Pres. Back to white vans, murder of journalists, selling the country to the Chinese, thuggery, plunder, rape and pillage. Oh but that’s alright. The roads will look nice. May the Gods help Sri Lanka!

  • 0
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    Guess it means that if the outcome of the next election is not to his satisfaction, he can again dissolve it till his team wins? :-) How this guy and his goons are taking the people for a ride!

  • 0
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    One day after a new parliament is formed should be dissolved if there is infighting creating instability to the country. New election will be give opportunity to the people to decide rightfully the fate of the country. Jayampathy intention is only .to serve the RW

  • 0
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    One day after a new parliament is formed should be dissolved if there is infighting creating instability to the country. New election will be give opportunity to the people to decide rightfully the fate of the country. Jayampathy intention is only .to serve RW

  • 1
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    I think Jayampathy is totally responsible for failure of 19th amendment which kept room for MS to act through. They have missed out to hold referendums/processes knowing that majority people won’t endorse the all changes. Need to be dead honest and fair for all when change the laws without hidden motives. All innocents are paying for their games.

  • 1
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    The 19 amendment is very rigid. Even in a deadlock like now parliament cannot be dissolved for 4 and half years ! ( the term of the parliament is 5 years) . The drafters of the 19 amendment could have simply said the President cannot dissolve parliament !

    But in a good constitution if there is a deadlock it should be possible to renew the mandate at a general election.

  • 0
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    Jayampathy is a comedian. He just can’t understand the consequences of his own deeds. This racist guy went to London and said ” Sinhalese asking what right Tamils are missing while they all can travel in the Colombo buses equally sitting with Sinhalese ” It is with that kind of Constitutional understanding this is the idiot drafted 19A.
    Every Sinhala leaders from Ranil, Karu, Jayampathy, Old King, New King, Anura Kumara, Dinesh,……… to Vasu the Communist Pakkaya all are hoping to keep their teeth tightly until they pass though this short jerk so that they can start back of their permanent job of ruling Tamils with Sinhala Autocracy, which Don Stephen started by disenfranchising the most important race of that time of the land, Up Country Tamils.
    When Ranil was dismissed and entire world asked Ranil to lead a rebel against the constitutional hijack; he refused to lead one because he thought that will hurt the War Criminals, New and Old Kings.
    Right after the Jan 2015 election, from Ranil to Jayampathy did not wanted to eliminate the EP part explaining that was very important to suppress Tamils, as there were expectation on their side the enslaved Tamils may rebel again. The entire Smart ( – Foolish) Sinhala leaders worked hard, from 1948, to give birth, feed and nurture their own Inchcape rock, hoping wiping out the Tamils as per Buddha’s request. When that guy flies back to Lankawe, he is going see Sahara in Sri Lanka created by Kuveni’s curse.
    Still there is piece of history remaining in Lankawe that there was Tamil Gentleman named Ramanathan went to London during the First World War and obtained freedom to the opportunistic Sinhala leaders. Sinhala Buddhists’ faith, from that day to now, remains unchallenged.
    Jayawewa for the Sinhala Buddhist’s Course of ruling Tamils.

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