From the time President Maithripala Sirisena sacked Ranil Wickremesinghe on October 26, till he dissolved parliament exactly two weeks later, doubts about the constitutional validity of his moves have been a recurring theme. The dissolution of the House in particular, shortly after Mr. Sirisena’s party declared it lacked numbers for a majority, sparked an instant dispute. Is the action, evidently a politically manoeuvre, legally tenable?
Under Article 33
Former Chief Justice Sarath N. Silva argues it is. Speaking to the local media, he has pointed to article 33 (2) (c) in the 19th Amendment, which states “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 to summon, prorogue and dissolve Parliament.” His position is in line with many of the President’s supporters, who privilege the import of article 33 (2) C, over what other pertinent sections may say.
However, Asanga Welikala, Director, Edinburgh Centre for Constitutional Law terms the dissolution of Parliament “wholly illegal and unconstitutional”.
After the 19th Amendment was enacted in 2015, the Parliament cannot be dissolved by the President during the first four and a half years of its five-year term, unless Parliament itself requests dissolution by a resolution passed by a two-thirds majority. The provisions, he said, were introduced by the 19th Amendment to strengthen Parliament, by removing the power of the President to unilaterally dissolve.
“This position is plain from the relevant provisions. The very President who was elected on the ‘good governance’ platform and gave political leadership in the enactment of the 19th Amendment is now acting as if it does not exist,” Mr. Welikala says, adding that Mr. Sirisena’s actions would have “grave consequences” for democracy and the rule of law.
Over the last few days, constitutional lawyers questioning the move, have repeatedly stated that Article 33 (2) is a general provision setting out the duties, powers and functions of the President, including that he may dissolve Parliament when he can do so under the law. Article 70 (1), however, is a specific provision that limits this power.
“It is a standard rule of interpretation that a general provision must always be read subject to any specific restriction. Therefore, Art 70(1) prevails over Art 33(2),” Mr. Welikala says.
Even as lawyers on either side try to push their cases, some point to the limits of finding constitutional counters to what is essentially a political crisis.
Senior civil liberties advocate Kishali Pinto-Jayawardena notes that in Sri Lanka’s history, each Constitution and constitutional amendment has been a political product of its times.
The one exception, she says, was perhaps the 17th Amendment, which instituted a Constitutional Council (CC) having a majority of independent civil society members and brought in the independent commissions. “But this had a short shelf life as the political establishment reacted violently to the clipping of its powers. In comparison, the 19th Amendment fell far short not only in its composition of the CC with politicians predominating. Conceptually as well as in textual content, there were fundamental inconsistencies that are now surfacing,” she observes.
Though it reversed the excesses of Rajapaksa’s 18th Amendment, it should not be hailed more idealistically than it ought to be, cautions Ms. Pinto-Jayawardena.
“That said, the working of any Constitution depends on mature political leadership and a shared concern for the national interest that overrides political differences. This is what is significantly lacking on the part of Sri Lanka’s political leaders on both sides. Revising the constitutional text will not address that problem,” she said.