By Rusiripala Tennakoon –

Rusiripala Tennakoon

With reversed situations now it is difficult to surmise who is ridiculed by whom. The bucket of water set up to fall on someone else, it looks like, has fallen on the head of the very person who did it.

This happens because ‘The law is an ass’?

Charles Dickens in Oliver Twist, (1838.) in his jest wrote, “When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “…the law supposes that your wife acts under your direction”, replies: “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass – a idiot”. 

“This proverbial expression is of English origin and the ass being referred to here is the English colloquial name for a donkey, not the American ‘ass’, which we will leave behind us at this point. (Like in the case of Pidurangala boys) Donkeys have a, somewhat unjustified, reputation for obstinance and stupidity that has given us the adjective ‘asinine’. It is the stupidly rigid application of the law that this phrase calls into question.” 

Quoted from literature.

A hastily drafted and hurriedly adopted constitutional amendment is causing enormous issues backfiring with serious implications to the entire country. Are we experiencing a negative outcome, of an act performed that was intended for someone else!

Legal luminaries do not endorse laymen attempting to talk about the pros and cons of constitutional implications. Because they say that such subjects including interpretations run into volumes beyond our reach. True they are, but it is the patient who should tell the doctor what the ailment is for him to understand and administer the medication. Therefore in anticipation of a pardon by them for this trespass into their sanctimoniously held sacred realms we have to raise certain issues that have cropped up in relation to the on- going debate about the current crisis before the country intriguing the  gullible public.

A week before we saw arguments by politicians, eminent writers and others about the legality of the removal of the PM, appointment of a new PM and the prorogation of the Parliament. As much has been spoken about these matters both from the point of view of ethical as well as legal grounds we need to be enlightened now on another issue we are confronted with, viz. the sudden dissolution of the Parliament by the President. Our observations in this regard are as follows: 

Parliaments are almost invariably dissolved while remaining prorogued. Hence the dissolution cannot be called sudden. First the prorogation then followed by Dissolution. If the period of prorogation could precipitate a settlement the dissolution may not have become necessary. But what we witnessed was a deliberate contemplation towards anarchy and chaos. The UNP affected by the Presidents’ decisions instead of resolving the issues which they highlighted as their grievances, unfortunately resorted to extra parliamentary methods in serious contravention of accepted practices and privileges that were open to them. The worst was the volte-face turnaround by the Speaker not to recognize the PM nominee, infringe upon normal parliamentary procedures, and trying to justify his conscience overriding the constitutional powers .Unfortunate as it was this situation lead to the need for preventive and precautionary steps to be taken to uphold the Democratic values of observing the legal provisions as enshrined in the written constitution of the Country. We feel we nearly avoided a repetition or even a worse scenario like that of what transpired recently in the parliament of UGANDA. There we saw how MPs armed with clubs and parts of broken chairs manhandling each other in the well of the sacred house of Parliament far beyond normal fisticuffs that came nearer manslaughter. 

Our Speaker who is expected to safeguard and ensure Democratic values was seen making statements disregarding the official pronouncements of a Head of the Government. What was designed apart the condensation of the Speaker by publicly announcing that he was going to act according to his own conviction than following the established practices was an alarming thing for a country like ours where we have throughout the history held fast to Democratic principles. So there came the dissolution. If the parliament with a group of MPs backed by the Speaker himself was getting ready for a show down like in Uganda we have to hail the steps taken to avoid such a disastrous move. 

Now are we within the constitutional powers conferred upon the President to dissolve the Parliament in this manner. Various views have been expressed. More against than those for. It is in this context that we record our observations as we see them.

We had a constitution which was recently amended last as the 19^th Amendment. This was a prime move of the Ranil Wickremaeinghe government supported by all except one MP in the parliament. The Amendment became Law on 15^th May 2015. In the proposal to amend the constitution to drastically reduce the Powers of the Executive (as agreed by all), the Supreme Court turned down certain clauses specifically noting that they cannot be amended by the Parliament without a General Referendum. Hence the parliament adopted what was permitted by the SC, unless otherwise any new clauses were introduced by the Parliament after referring the draft to the SC. In the process we see many changes being effected in particular in the area of Executive Power vested in the President. Certain sections of the Constitution have been replaced in total and several others with minor substitutions.

If we examine this process in relation to the current crisis of the power to dissolve the parliament, we observe the following.

 The Constitution -Chapter vii THE EXECUTIVE- THE PRESIDENT OF THE REUBLIC

Article 33 of the  , dealing with the duties, powers and functions of the President, has been deleted and substituted with an entirely new article 33,with two sub sections (1) and (2) with a new addition of article 33A. 

In the amended form, Article 33(2) reads as, 

“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    ( underlined emphasis ours)

Inter-alia

(c) To summon, prorogue and dissolve parliament; 

Now very strangely the previous article of the constitution, viz... Article 33, did not contain this provision. Therefore it appears that (c) has been deliberately introduced in the amendment for some special requirement.

By including this power under the heading, IN ADDITION TO THE POWERS, DUTIES AND FUNCTIONS CONFERRED OR IMPOSED ON, OR ASSIGNED TO THE PRESIDENT it intends to convey a special meaning that this clause (c) supersedes any other provision in the constitution. Because it states that it is in addition.

Accordingly whatever the other provisions contain as restrictions to dissolve the parliament this right/power to dissolve is in addition to those.

President’s proclamation regarding the dissolution refers to 3 articles; viz.

Article 33(c), that we quoted above AND 62 (2), and 70 (1);

62 (2) spells out the normal life span of the parliament to 5 years unless is sooner dissolved. Accordingly the dissolution before the full life span is provided for in the Constitution under this Article.

70 (1) is the Article dealing with the LEGISLATURE.

Under this “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 , unless the Parliament requests the President to do so by a resolution passed by not less than two- thirds of the whole number of members voting in its favor. 

Before the 19^th Amendment the only difference in this Article was that the period for dissolution at the discretion of the President was one year instead of the 4and ½ years under the amendment. While the Legislature had to take note of these powers and procedures applicable to the sessions of Parliament, the Duties Powers and functions of the President was reiterated and emphasized under a new Article brought in under the 19^th Amendment as clearly spelled under 33 (2) (c), where the President has powers in addition to any other constitutional provisions to dissolve Parliament.

 This appears as a safeguard of the Executive Powers conferred to Exercise the Sovereignty of the People by the President of the Republic elected by the People. (Article 4 (b) of the Constitution.)