15 August, 2020

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Violating Our Supreme Law – Parliament’s Constitutional Duty To Act 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Article 33A of the Constitution states that the President “shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law”. Parliament, therefore, has a constitutional duty to call upon the President to account for his actions, especially if it appears that he has acted outside and beyond his powers. Having done so, Parliament may, by a resolution passed with a majority vote, decide to censure him, or request his resignation. A self-respecting President will know how to respond to such a resolution.  Alternatively, Parliament may remove the President from office, but only if two-thirds of its membership so resolve, following a determination of the Supreme Court that the President has been guilty of intentional violation of the Constitution, treason, bribery, misconduct, corruption or an offence involving moral turpitude. 

Last month, seven Judges of the Supreme Court unanimously held that the President had acted in violation of the Constitution when he purported to dissolve Parliament.  That is an impeachable offence. His defence that he is “not a lawyer”, and that he acted “on the advice of eminent President’s Counsels” is unacceptable because the language of the Constitution could not have been clearer: “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”. Therefore, Parliament is entitled to ask the President whether he was indeed incapable of understanding the meaning of that simple sentence. 

The President’s journey of intentionally violating the Constitution began with his purported dismissal, on an October Friday night, of Prime Minister Ranil Wickremesinghe who had earlier in the year secured a decisive vote of confidence from Parliament. The Constitution does not grant the President the power to remove the Prime Minister. In fact, that power which Presidents previously enjoyed was abolished in April 2015 by the 19th Amendment which his own Government introduced. Therefore, Parliament is entitled to ask the President whether that unconstitutional act was due to loss of memory or was deliberately intended to facilitate yet another unconstitutional objective.

The President’s unconstitutional journey continued when he appointed Mahinda Rajapaksa to the office of Prime Minister. It would have been evident to anyone who had acquired the ability to count up to 225, that Rajapaksa did not have the support of half that number plus one of Members of Parliament. Therefore, Parliament is entitled to ask the President by what process of reasoning he reached the conclusion that Rajapakse was the Member of Parliament “who is most likely to command the confidence of Parliament”.

The President’s next unconstitutional act was to prorogue Parliament. Of course, he has the power to do that, but constitutional convention demands that that power be exercised on the advice of the Speaker or the Prime Minister, usually for the purpose of providing the Members a recess or facilitating the conduct of government business. Therefore, Parliament is entitled to ask the President, who acted on his own initiative disregarding parliamentary convention, whether his action was motivated by an ulterior objective, such as providing Mahinda Rajapakse time to “secure” a majority.  

In a subsequent widely-publicized television interview, the President claimed that Rajapakse failed in the endeavor to secure a majority because Members of Parliament had demanded the unconscionable price of five hundred million rupees to cross-over. Therefore, Parliament is entitled to ask the President whether, in addition to being aware of that criminal activity, he himself had participated in that endeavor, either directly or indirectly. To have done so would constitute “bribery, misconduct, or corruption” – all further grounds for the impeachment of the President.

When the President defiantly ignored three repeated resolutions of Parliament expressing a lack of confidence in the “Government” of Mahinda Rajapaksa, he was deliberately acting in violation of Article 48(2) which states that “If Parliament passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved”.  He compounded that offence when he insisted that uncomplimentary references to him in resolutions passed by Parliament be deleted.  Will Parliament choose to ignore this challenge to its constitutional authority?

When the President reportedly refused to act on the Prime Minister’s advice and declined to appoint certain Members of Parliament as Ministers, he was acting in violation of the Constitution. Under the 19th Amendment, he is required to act on such advice. Indeed, the President’s only function at the stage of Cabinet formation is to determine the number of ministries and to assign subjects and functions to such ministries. Thereafter, the choice of Ministers to be in charge of the ministries so determined is entirely a matter for the Prime Minister. Therefore, Parliament is entitled to ask the President by what constitutional authority he declined, as reported, to accept the Prime Minister’s choice of Ministers.

Under the Constitution, only a Member of Parliament may be appointed a Minister, and all the subjects and functions of government are required to be assigned to such Ministers.  However, a strange, unprecedented, transitional provision in the 19th Amendment enables Maithripala Sirisena, while he holds office as President, to “assign to himself the subjects and functions of Defence, Mahaweli Development and Environment”. He has now availed himself of that provision. He has gone further and assigned to himself the “Police” and the “Government Printer” and placed them within the Ministry of Defence. The police force is responsible for internal security and the investigation of crime, while “Defence” means defence of the State from external forces.  Similarly, what the Government Printer has to do with “Defence” is perhaps comprehensible only to the President. Therefore, Parliament is entitled to sanction the President for arrogating to himself subjects and functions of government which the Constitution explicitly requires to be assigned to a Minister who is a Member of Parliament.

Under the Constitution, the President is the Head of the Government. Of his own choice, Maithripala Sirisena is also the President of the SLFP and of the UPFA which is a coalition of like-minded political parties that includes the SLFP.  Mahinda Rajapaksa, who claims to be a member of the SLFP/UPFA, is reportedly now the Leader of the Opposition. Therefore, Parliament is entitled to ask the President to explain how he can concurrently serve as Head of the Government and as Head of the Opposition, and whether he does not understand that functioning simultaneously in both capacities is a gross violation of the fundamental democratic basis of the Constitution.

During the tumultuous events of the past two months, when the President engulfed the Republic in an unprecedented state of anarchy, it was the Speaker of Parliament Karu Jayasuriya who, with exceptional courage, maturity and dignity, facilitated sanity to be restored. aIt is now his constitutional duty to enable Parliament to exercise the powers conferred on it by Article 33A by summoning the President before the Bar of Parliament and requiring him to account for his repeated and intentional violations of the supreme law of the land – Our Constitution.

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Latest comments

  • 6
    1

    Great Article by NJ. Very clear and succinct and needs to be addressed urgently by the government. The sbhithead needs to be made acocuntable for his treason and breach of the constitutional. RW must not allow this bastard to get away with pleading ignorance and trying to scuttle the legally appointed government. As a citizen I want to see this bastard brought before the courts, disgraced and punished. Hung by his testicles and body to be used for fertiliser is too kind for this shithead. Get rid of him quickly RW as the longer he continues to function as the slimy patholaya president the more damage to your government and the country. We dont want to see this vermin continue to pillage the country by doing f..k all, breaching our trust and being a traitor and obstacle to good governance. He is ruining the image of SL and is hell bent on f…king this country up. Every MP must now group together to see this shit out of politics and locked up in a room with pigs.

    • 0
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      Dear Dr. Jayawickrama,
      .
      Let alone the Lay public, is the Constitution interpreted uniformly by the legal profession? Even the AG’s interpretation is in conflict with the SC !
      Different people interprets it according to the colour they wear.
      .
      Some MPs get elected and some gets appointed.
      According to the Constitution they are unequal.
      .
      Clause 4 Article 4 (a)
      The legislative power of the people shall be exercised by Parliament, consisting of Elected representatives of the people and by the People at a Referendum
      .
      Constitutionally, the appointed MP’s cannot vote for ANY Legislation
      .
      By allowing the appointed MPs to vote, isn’t Parliament violating the Constitution?
      Is it legal for an appointed MP to wield legal power in Parliament?
      The Speaker is an appointed MP who is prohibited from voting for/against legislation!
      .
      There are 29 appointed MPs (including the Speaker).
      What is the legality of ANY legislation that has been passed with 29 illegal votes?
      .
      In the judgement delivered by K. Sripavan CJ, SC Judges Chandra Ekanayake & Priyasath Dep, on the Constitutionality of 19A, an interesting interpretation is made.
      .
      They find that a Violation of the Mandate given by the People, affects the Sovereignty of the People and is inconsistent with Article 3 read with Article 4 of the Constitution. (see page 9 of the judgement)
      .
      Appointing persons Rejected by the People to Parliament is a clear infringement of the People’s Sovereignty. Who should be held accountable? The respective party leaders? The Speaker who allowed an illegal vote?
      .
      Did you know RW attempted to use the Constitution to GAG both Private & State media?
      .
      Once in the Constitution Censorship is Democratic Ne!

      • 0
        0

        Hope Mr Jayawickrama will answer this very important question.

        Soma

  • 0
    0

    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

  • 4
    0

    We have not forgotten the bheeshanaya dictatorship under Felix ‘Churchof England) b. nayakwa in the 70s of which this guy was the bals carrier of Felix. We also haven’t forgotten how he absconded when JRJ was looking for him with a hot rod in hand.

    All this shows how easy it is for any cad to suddenly become a moral ‘yahapalanist’. Such thieves should be kept away for good.

  • 1
    0

    Your article is an absurd misinterpretation of the truth about 19A.
    Sections relevant to your argument about Article-33 such as Sections 5, 6 and even Section 7 of the 19A which is relevant to Article-35 could not be enacted without a Referendum.
    Nowhere in the 1978 Constitution, it says that Presidential power could be transferred to PM or to Parliament in installments, by ⅔ majority.
    Therefore, “Parliament, has NO constitutional duty OR POWER to call upon the President to account for his actions” randomly.
    Even if they pass “a resolution with a majority vote to censure him, or request his resignation (as you say,)” the President is NOT UNDER OBLIGATION to follow their orders.
    I am not a supporter of President’s decision to dissolve Parliament. Though his action was nullified by the SC, he has followed the correct procedure by consulting the Attorney General, the Government Legal Adviser, who represented him in the case. Therefore, you cannot say that his action was an “intentional” violation of the Constitution. It is unconstitutional, true, but clearly “unintentional.”
    His action to prorogue Parliament was unethical, not unconstitutional. You are wrong there too, as he has acted based on powers vested by 1978 Constitution to do so. As mentioned earlier, 19A was an incomplete job in terms of decreasing and transferring Presidential powers to random people.
    And proroguing Parliament is rather a question of his ethics and integrity, than abuse of power, compared to enormous extent of abuse of power committed by President Premadasa and President JRJ.
    The bribery allegation is a joke. Do you think if Parliament asked the President whether he directly or indirectly took part in the act and can get the answer as “yes” to help UNP to go for an impeachment? Oh, please, give me a break.

    • 3
      1

      Champa the …………………..

      “Your article is an absurd misinterpretation of the truth about 19A.”

      Do you think so?
      Then the article must be brilliant.
      I must spend some time reading it.
      Thanks

  • 1
    0

    Sorry Dr Nihal Jayawickrama. Censuring MS may lead to violence – just what certain lawmakers/leaders are looking for.
    .
    The version of democracy we have does not possess the spirit. One will expect all citizens to be equal. Do we have this?
    .
    Our constitution has been changed time and again to suit certain individuals. The Presidential system was not well thought through but our leaders will not address this.
    For example this list MP thingy is a bane. Is was reported that MS wants to bring Shatha Bandara as list MP. Shatha was rejected by the people.
    There are many such rejects in parliament.
    Few weeks back, Minister Bathiutheen sneaked Prof S M M Ismail as a list MP. Ismail (a former VC) is under investigation by UGC.
    .
    What is required is a rethink on the Presidential system in general and in particular the list MPs. For a start look at this infamous horse auctions.

  • 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

  • 0
    0

    “Having done so, Parliament may, by a resolution passed with a majority vote, decide to censure him, or request his resignation”
    I think even a single member can censure him and request his resignation. For that matter even an ordinary citizen can do that.

    Soma

  • 0
    0

    Sirisena is not legally liable for any AMBIGUITIES in the Constitution.
    The word “LIKELY”(to command the majority) grants him discretion. Obviously the appropriate sentence should have been “the party leader who has DEMONSTRATED ( like a letter with majority signatures.) to command the majority”

    Soma

  • 0
    0

    According to Mr Jayawickrama
    after a court interpretation of a Constitutional clause those who represented the wrong side can be procecuted! In this case Attorney General?

    Soma

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