by N Sathiya Moorthy 29 June 2020
Before Covid crisis peaked, President Gotabaya Rajapaksa had sought a two-thirds majority for the ruling SLPP in the parliamentary polls, headed by brother and Prime Minister Mahinda R. With the polls now re-scheduled for 5 August, the ruling combine’s slogan remains the same. The question still remains if they would get the two-thirds figure, which they want for scrapping the 19th Amendment of predecessor Sirisena-Wickremesinghe regime.
It will be interesting to note what would be then President Maithiripala Sirisena’s response if now asked about either the wisdom of 19-A, or the Rajapaksas’ desire to have it scrapped. Unlike then, he is now on their side, and by implication, it would mean that he endorses the SLPP’s position.
The question however remains if the scrapping of 19-A would confer on the Executive Presidency whatever residual powers that had been taken away by and through the amendment. Through the end-2018 dismissal of Prime Minister Ranil Wickremesinghe-led team, followed by the dissolution of Parliament, not long thereafter, Sirisena pushed presidential powers to their limits.
The subsequent Supreme Court veto against Sirisena’s twin-decisions, especially one on the dismissal of the Wickremesinghe team, also exposed the limits and limitations of the Executive President’s powers in terms of dismissal of an indirectly elected Prime Minister. Independent of 19-A or its scrapping, there is nothing to suggest that the Executive Presidency can claim the powers that existed before the said constitutional amendment.
In simple terms, in the said case, a seven-Judge Bench of the Supreme Court unanimously declared that the President did not have the powers to dismiss an elected Government. Instead, the court insisted that Parliament alone was the forum to decide the majority of a Government in office.
Spirit of the ruling
Across much of the democratic world, this is the universal truth of parliamentary democracy. In neighbouring India, the world’s largest democracy, the Supreme Court in the country decided likewise in the famous ‘S R Bommai case’ (1994). The court verdict in India applies both to the national Parliament and also State (provincial) assemblies.
The spirit of the Sri Lankan Supreme Court ruling is that the President does not have any inherent powers to dismiss an elected Government, without Parliament voting on the matter, accordingly. There has not been any occasion since to test the same provisions viz elected Provincial Councils, but by extension, that should be the case however.
Of course, 19-A has given the President the powers to dissolve Parliament without assigning any reason within six months of the impending conclusion of Parliament’s elected five-year term. President Gotabaya’s decision to dissolve Parliament on 2 March and order fresh polls on the originally-fixed date of 25 April flowed from this constitutional provision. Covid19 may have caused the change of election date, but it cannot challenge the current constitutional provision, as outlined by the Supreme Court in the Wickremesinghe case of 2018.
Pre-19-A, the President could dissolve Parliament any time after the completion of the first year. Technically, until the conclusion of his or her terms, the President could have three or four Parliaments during his/her term, no questions asked. Chandrika Bandaranaike-Kumaratunga, CBK, used those powers to sack Prime Minister Wickremesinghe’s Government once earlier, in 2004.
Incidentally, Wickremesinghe’s first term as Prime Minister too was short-lived (1993-94) as he stepped into the shoes of the late Dingri Banda Wijetunga, who became President for the residual term following the LTTE’s assassination of incumbent Ranasinghe Premadasa. His only attempt to become President failed in 2005. Thrice afterwards, even his chance to contest the polls was scuttled, respectively by Sarath Fonseka (2010), Sirisena (2015) and party colleague Sajith Premadasa (2019).
The 19-A shortened from four years to six months, the period within which the President could dissolve Parliament and order fresh elections. None contested the President’s powers in this regard with reference to the 2018 Supreme Court decision, as the former has been clearly delineated. However, in the coming years and decades, a situation may arise in which the very powers of the President to unilaterally dissolve Parliament may come under judicial scrutiny.
In the changed circumstances of the 21st century, the court may be asked to adjudicate the continued relevance of such powers, possibly when 19-A is sought to be scrapped, post-poll. This could also happen much later, even if the six-month term is not replaced by the original four years or any period in between.
The reasons are not far to seek. The very purpose of electoral democracy is to remove all vestiges of unilateral and non-justiciable powers conferred on the Head of State, using the instrument of the Constitution. In India, the largest democracy, for instance, the Supreme Court held as far back as 1971 that the President of the Union cannot function without the aid and advice of the Council of Ministers with Prime Minister as the head (U N R Rao vs Indira Gandhi).
Revisiting the position
Given the contemporary mood of the higher judiciary in Sri Lanka, it is not unlikely that the Supreme Court may want to revisit the position as established under the Second Republican Constitution, including 19-A. A clearer picture may emerge as and when the court comes up with the details of the unanimous, five-Judge Bench decision, upholding President Gota’s dissolution of Parliament, his powers to fix election date and related matters.
The current powers of the President to dissolve Parliament unilaterally was introduced by late J R Jayewardene through the Second Republican Constitution (1978) was unilateral in that neither was there a credible Opposition, or was even the face of the SLFP Opposition, defeated Prime Minister Sirimavo Bandaranaike, allowed to participate. In an unparalleled and unprecedented episode, JRJ got Sirimavo disenfranchised, as if Sri Lanka was still a colony of some external power, which was more dignified and decent, in context.
In 2018, the dismissal of the Wickremesinghe Government was challenged in the Supreme Court and the dissolution of Parliament in the Court of Appeal (CA). President Sirisena having sworn in Wickremesinghe again, thus facilitating Parliament voting on the latter’s continuance, the CA case became infructuous.
‘Interim’ Prime Minister Mahinda Rajapaksa, if that is the term, also withdrew his appeal in the Supreme Court, challenging the CA’s interim orders in the matter, hence leaving the question open for the higher judiciary to decide upon on a future date, if called upon to do so. With all that however, Wickremesinghe became the only Prime Minister in the country, to serve during the period of three Parliaments, but sworn in four times!
The article appeared in the Colombo Gazette on 29 June 2020