28 September, 2020

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Unrealistic Hopes Of Impeaching Gota

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.

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Latest comments

  • 10
    0

    This is fluent bulls…..
    No one in his right mind will think about impeaching the President at a time the entire nation is facing a deadly virus.
    Besides, impeachment is a process, not a one step.
    If this is the reason for not reconvening Parliament, then it is purely selfish and also a very lame excuse.
    I posted a comment to PM’s statement highlighting some ground realities.

    • 6
      1

      Champa

      “No one in his right mind will think about impeaching the President at a time the entire nation is facing a deadly virus.”

      Pure unadulterated bull.
      The country has been in lock down since 1956, being infected with all kinds of viruses, namely, Pancha Maha Balawegaya, Sinhala Only, CHAPTER II , Sinha Le, BBS, “Motherland or Death”, War for Peace, ……………………………………

  • 5
    1

    This may be your payback for being appointed Ambassador- a reward for writing GOTAs war in the first place.
    You are not a lawyer to give a legal opinion.
    There are serious constiutional issues about the upcoming election and President power to pass a budget.. Let the Laweyers and courts give an opinion.
    IMPEACHMENT- impossibe to get 2/3- Simple numbers of Govt and opposition MPs
    I think you should go back to school and do some simple arithmatic

  • 4
    1

    In essence what Chandraprema says is simply this……..

    Parliament cannot be reconvened since the opposition could present an Impeachment motion against the President! says Chandreprema.
    To hell with the Corona and people dying the President must stay safe!
    So, is the President scared to reconvene Parliament simply because he fears an Impeachment?
    We thought the President was a tough man who defeated the LTTE!
    Chandraprema has also documented the courage of the President in his Book Gotas War.
    BUT,now he says quite the opposite!

    • 2
      1

      Plato

      “We thought the President was a tough man who defeated the LTTE!”

      True, Velu Prabaharan did the fighting against LTTE and Tamils, Hndia bestowed Gota the honour and protected him and his single handed generals from UNHRC’s investigation. Mangala Samaraweera bought him some time from ….. whatever.

      Gota recently said weak constitution is inappropriate for a country when weak rulers are elected but weak constitution won’t hinder him because he is the strongman.

      Where did he get the idea he was strong?

      ” Chandraprema has also documented the courage of the President in his Book Gotas War.”

      Actually it is Gota’s b***s and bulls.

  • 4
    1

    Mr. Chandraprema: Don’t ever think of an “Impeachment”. We need you to write another “Book” and title it “Gota’s COVID 19 War”.

    • 3
      1

      Simon

      “We need you to write another “Book” and title it “Gota’s COVID 19 War”.

      I suggest another title, “B***sless Gota’s COVID 19 War”

  • 2
    0

    SLPP is a political party wants two third majority SLPP parliament for Mahinda family to rob this nation. Fear mongering propaganda to convince majority of Buddhist Sinhala is the primary focus. They knew majority of Buddhist Sinhala can be cheated with this kind of propaganda. In the first place they allowed Corona virus come to Srilanka through a Chinese tourist or a prearranged deal. They thought they can mesmerise Buddhist Sinhala using the Coronavirus control success as Mahinda Family effort as they did with LTTE. Unfortunately, unexpectedly the Corona did not understand their motive and it came with unexpected way and it also unexpectedly reached the armed forces. Now situation is that they cannot have a parliamentary election as they planned and started their propaganda of impeachment, previous government is trying topple the President and so on.

    • 0
      1

      Ajith, I agreed sufficiently to add a green thumb mark, but I think that you go too far in feeling that the Rajapaksas planned so much.
      .
      However, I do grant that they understand how easy it is to fool the Sinhalese people. They’re so sure that they “own” this island, and they vote without thinking at all. I try so hard with individuals. Young and old. They tell you that they aren’t interested in politics, admit that the fellows who get votes are corrupt – yet they insist on voting.
      .
      https://ceylontoday.lk/news-more/13083
      .
      The sheer number of candidates is amazing – in all Districts.
      .
      https://ceylontoday.lk/site-api/uploads/media/e64d27ecdb6bb914ff8ac38ec7da7e79fd2cff10.jpg
      .
      The figures are clear enough, although the rubrics are in Sinhalese., which I don’t think you understand.
      .
      Yes, the virus has proved more stubborn than imagined.
      .
      The country is going to be in ruins. I’ll be dead. I shudder for the young. To think that this is what mankind could be doing to itself!

  • 1
    0

    Writers who have shown absolute and unquestioning loyalty to certain powerful politicians cannot be considered as credible analysts of speculative topics where the subject is their hero, whether or not they have qualifications in a relevant field of study. This writer seems to epitomize that observation.

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