By C.A. Chandraprema –

C.A. Chandraprema

Some members of the SLPP have expressed the fear that if the Parliament is reconvened as demanded by the opposition, the latter which has the majority in Parliament could present an impeachment motion against the President. Going by the behavior of the opposition, such fears may not be unfounded and it could be that the opposition does harbor hopes of being able to present an impeachment motion against the President if Parliament is reconvened. The requirements to carry through to a successful conclusion an impeachment motion against a President are heavy. So much so that there is absolutely no chance of such an attempt succeeding. However, there may be some in the opposition who think that by presenting an impeachment motion against the President, the dissolution of the reconvened Parliament can be blocked at least for a while.

Before the 19th Amendment, our Constitution had Article 70(1)(c) which stated that the President shall not dissolve Parliament after the Speaker has entertained a resolution to impech the President. However, Article 70(1)(c) no longer exists in the Constitution after the 19th Amendment. Hence the President can dissolve Parliament even after an impeachment motion has been entertained by the Speaker in the reconvened Parliament – if such a reconvening takes palce.

According to Article 38(2)(a) of the Constitution, any Member of Parliament may, by a writing addressed to the Speaker, give notice of a resolution alleging that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the President has been guilty of – (i) intentional violation of the Constitution, (ii) treason, (iii) bribery, (iv) misconduct or corruption involving the abuse of the powers of his office, or (v) any offence under any law, involving moral turpitude and setting out full particulars of the allegation or allegations made and seeking an inquiry and report thereon by the Supreme Court.

Article 38(2)(b) states that no notice of such resolution shall be entertained by the Speaker or placed on the Order Paper of Parliament unless (i) such notice of resolution is signed by not less than two-thirds of the whole number of Members of Parliament ; or (ii) such notice of resolution is signed by not less than one-half of the whole number of Members of Parliament and the Speaker is satisfied that the allegations made merit inquiry and report by the Supreme Court.

The opposition does have more than one half of the MPs in Parliament and the Speaker is with them, so they can in fact start an impeachment process under Article 38(b)(ii) if they wish to. Had the old Article 70(1)(c) still existed, this would then have prevented the President from dissolving Parliament again for a while until the impeachment motion either succeeded or fizzled out. If one half of the MPs in Parliament and the Speaker act in concert, the impeachment motion can be taken only as far as being ‘entertained’ by the Speaker.

For it to be taken to the next level where it is referred to the Supreme Court under article 38(2)(c), a resolution has to be passed by Parliament by a two thirds majority of the whole number of Members of Parliament including those not present. Even if the Supreme Court deems the President to be at fault as alleged in the impeachment, the latter cannot be removed from office without yet another vote by a two thirds majority of the whole number of Members of Parliament. So even if an impeachment motion gets to the point where it is entertained by the Speaker, it cannot be taken to the next level by the yahapalana political parties. But then again, all that they would want from an impeachment motion at this stage is simply to buy them some time by preventing the President from dissolving Parliament again after reconvening it.

However, as we pointed out earlier, the absence of the old Article 70(1)(c) in the Constitution means that the President can dissolve Parliament even after an impeachment motion against him has been entertained by the Speaker. The reason why Article 70(1)(c) was dropped, may have been because the 19th Amendment created a Parliament that cannot be dissolved for any reason whatsoever before the lapse of four and a half years of its term. The formulators of the 19th Amendment may also have considered the fact that it was very unlikely that any Parliament would want to impeach the President in the last six months of its tenure.

So perhaps as far as the 19th Amendment was concerned, there was no need to have a special provision preventing the President from dissolving Parliament in the event an impeachment motion against the President is entertained by the Speaker. After that four and a half year period however, the President is completely free to dissolve Parliament, even in the event where an impeachment motion against him has been entertained by the Speaker. The old Article 70(1)(c) was quite a comprehensive provision which prevented the dissolution of Parliament until the impeachment motion against the President either succeeded or failed. The absence of this provision means that if an impeachment motion is in mid-process at the time that Parliament reaches that four and a half year cut off point in the 19th Amendment, the President can simply dissolve Parliament and make short shrift of the proceedings against him!

Argument about government funding

At this present moment, the opposition’s main argument for demanding the reconvening of Parliament is the claim that the President does not have the authority to authorize government spending after the 30th of April. The contention being that under Article 150(3) of the Constitution, the President may allocate money to keep government services running after Parliament has been dissolved only if Parliament has not previously made provision for such matters. They contend that the yahapalana government had passed a Vote on Account that would last until 30 April and therefore, after that date, the President has no power to allocate money for the maintenance of government services.

However, it’s quite clear that what Article 150(3) of the Constitution says is firstly, that there is no need for the President to make allocations for a given purpose if Parliament has already done so – which is self evident. Secondly, if Parliament has not made allocations for some need that arises after Parliament has been dissolved, the President has the power to make the required financial allocation, and thirdly that the President will retain this power to allocate money for the purposes of government until the lapse of three months after the date set for the first meeting of the new Parliament – a provision obviously designed to cover the days or weeks required by a new government to get its act together and to formulate a budget.

Parliamentary democracy itself would not be possible without such a provision. Similar provisions giving the head of state temporary control over government finances when Parliament has been dissolved for an election to be held has been in every Constitution we have had since independence. Viz the following:

Ceylon Constitution Order in Council 1946

Article 67(3) – Where the Governor-General dissolves Parliament before the Appropriation Bill for the financial year has received the Royal Assent, he may, unless Parliament shall have already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new House of Representatives is summoned to meet.

First Republican Constitution 1972

Article 86(3) – Where the President dissolves the National State Assembly before the Appropriation Bill for the financial year has passed into law, he may, unless the National State Assembly shall have already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new National State Assembly is summoned to meet.

The 1978 Constitution

Article 150(3) – Where the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law, he may, unless Parliament shall have already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.

It will be noticed that through seven decades and three different constitutions, little has changed in this particular provision. Parliamentary democracy would not have lasted till this day if not for this provision. The most important thing to notice is that in the 1948 and 1972 Constitutions, even the nominal head of state exercised the same powers as the present elected executive President in this regard. The reason why the 1948 and 1972 Constitutions allowed the nominal head of state who was not elected, not the head of the Government and not the head of the Cabinet to exercise such powers is obviously because some suitable state functionary has to exercise the power to make financial allocations to keep government services going in situations where Parliament is no longer able to do so.

In all three constitutions, the head of state steps in to wield financial powers only if an allocation has not already been made by Parliament for the purpose at hand. Going by this standard provision which has changed so little from one constitution to the next, if the previous government had passed a Vote on Account till 30 April, well the President should carry on from where that allocation stops. Indeed the wording of this provision clearly indicates that even if the Vote on Account was still operative, but there was some need for which Parliament had not provided for in that Vote on Account, the President can step in and allocate the funds needed for that purpose.

The whole idea in having this provision is for the President to be able to do what is needed to keep things going until the new Parliament meets. It’s the height of absurdity to claim that Parliament has to be recalled to pass funds when the whole purpose of Article 150(3) is to facilitate the running of the country between the dissolution of one Parliament and the election and commencement of another Parliament.