ruling shows a way out
on Article 70
Finance Minister K.N. Choksy on Friday expressed his
view on Article 70 subsection (1) (a) which deals with the
legislative procedure and power.
Choksy referring to article 70 (1) (a) said that if a general
election is held consequent upon a dissolution of Parliament
by the President before its fixed term of six years is lapsed,
then a fetter is placed on the President that the next Parliament
elected after such a dissolution by people could not be dissolved
for a period of one year by the President.
is to guarantee that if another party of which the President
is not a member is elected to office it should at least stay
for one year in office before President could dissolve it.
circumstances the power to dissolve Parliament within that
year is transferred from the President to Parliament and when
Parliament resolves that it should be dissolved within that
year the President does not have an option but to dissolve
in the Westminster system of Parliament has been adopted in
the hybrid Constitution in this regard.
asked as to whether Article 70 (1) gives the discretionary
power to the President because it states that "President
may---" he said that this discretion power has been qualified
in a proviso given under sub section (a).
70 (1) The President may from time to time by proclaimation
summon, prorogue and dissolve Parliament
(a) Subject to the provisions of sub paragraph (d), when a
general election has been held consequent upon a dissolution
of Parlaiment by the President, the President shall not thereafter
dissolve Parliament until the expiration of a period of one
year from the date of such General Election, unless Parlaiment
by resolution requests the President to dissolve Parliament.
has gripped the country once again especially after the attack on
the Kanchirankudah STF camp by LTTE-instigated mobs. The incident
triggered a series of protests in the Trincomalee district and elsewhere
with the LTTE inciting schoolchildren and civilians to take part
in them, making it difficult for the authorities to use force to
bring the situation under control.
acted patiently but the LTTE tried to fish in the troubled waters
to gain political and military mileage.
The Tamil National
Alliance blamed the police and the military for being just onlookers
when those they claimed to be 'innocent' protesters were attacked
by Sinhala mobs at Abeypura in Trincomalee.
All this could
be a part of a complicated process of the LTTE to force the government
to move out military installations from strategic points in the
It would seem
to be evident that the motive behind the Kanchirankudah instigation
was to clear the area of any military presence so that the LTTE
could have leverage in the Muslim dominated Akkaraipattu.
however, insisted that the STF camp should remain there for their
protection. The STF shooting took place only after the civilians
broke into the camp premises and set ablaze some makeshift structures.
It was an act of self defence. That the Sri Lanka Monitoring Mission
found four bodies within the parameters of the camp confirm this
The STF after
all cannot be blamed for the shooting and it did so only after its
patience ran out and got orders from above.
Though an inquiry
has been initiated by the government, according to available evidence,
there is very little that any government could do under these circumstances.
launched by the civilian mobs are somewhat similar to the manoeuvres
of the Irish Republican Army in Northern Ireland to push the military
installations out of the areas coming under their writ.
is an elite strike force and we should not get them to do normal
policing which is the duty of the police," one senior minister
told this column.
are no immediate plans to replace the STF with Police in the East
the government is now looking at the possibility of training the
police to meet the challenges there.
admits that police need special training to tackle delicate situations.
This is why Sri Lanka's High Commissioner in London Faiz Musthapa
has been told by the government to establish contacts with Northern
Ireland Police and to train our own Police on those lines to meet
the challenges posed by the LTTE.
It is important
to find out how the Irish Police are facing the challenges there
with the IRA, because eventually we too would have to have our police
instead of any elite force to do the policing in the East, a senior
defence official said.
situation in the East is volatile, the LTTE first attacked the Muslim
settlements in the East despite an agreement between Prabhakaran
and Hakeem for peaceful cohabitation in the East.
week the situation turned out to be even more so.
in the East, their grievance is that the government had not sufficiently
and adequately addressed the problems faced by them, and to pave
the way for Muslim participation in the administration of the North-East.
They don't want to be dominated by the Tamils and be a minority
under a Tamil majority administration. The length and the breadth
of the Muslim problem is that they want to be equal partners in
the administration of the East. But the LTTE Eastern political hierarchy
thinks otherwise. It appears sometimes that the LTTE leadership
in the Vanni is loosing its grip over the East or most of the decisions
taken by the top brass in the Vanni do not trickle down to the ground
forces of the LTTE in the East.
In this situation,
SLMC Leader Rauff Hakeem is facing a daunting task. On the one hand,
he has to be with the government to strengthen the hand of Prime
Minister Ranil Wickremesinghe and on the other, he is tackling a
bigger problem of keeping his flock together in the East.
Some of his
own parliamentarians are rebelling against him.
How Mr. Hakeem
will tackle this problem is the concern of the UNF today. Nine SLMC
MPs boycotted Parliament for one week demanding a written assurance
from the Prime Minister that their grievances would be looked into
on a priority basis and the Muslims would be given their due place
in a final settlement to the ethnic problem.
In this scenario
it appears that the PA is not merely monitoring the political developments
but is also fishing in troubled waters to scuttle the efforts made
by the UNF for a durable settlement of the conflict.
The SLMC rebels
did not want to vote with the 19th Amendment to the constitution,
especially the Conscience Bill which will give any parliamentarian
the right to vote according to his or her conscience thus defying
the party whip. The amendment debarred the party from taking disciplinary
action against such members.
The SLMC rebels
felt that the bill would devalue their bargaining power and eventually
lead to the dissolution of the party with the two major parties
preying upon their members.
amendment was for the particular purpose of vesting the power of
dissolution of Parliament within its own authority, legal experts
argue that this provision would be 'alive' as long as the constitution
is in force, and it could create problems within the very foundation
of the party system.
fears entertained by the SLMC rebel MPs, they have been academic
according the Supreme Court bench which scrutinized the 19th Amendment.
The court struck
off the conscience vote bill from the Amendment upholding the arguments
put forward by two eminent lawyers - H.L. de Silva and R.K.W. Gunasekera.
It is a special
achievement for both these lawyers, especially Mr. de Silva after
he challenged the constitution of the Special Presidential Commission
set up during the J.R. Jayewardene period to probe charges of abuse
of power by the late Prime Minister Sirima Bandaranaike.
Mr. de Silva's
arguments were upheld by the Chief Justice and the rest of the judges
and the ruling naturally had shaken the UNF government.
The court has
unanimously held that the 'conscience vote' is illegal. The court
has also adopted the Indian system whereby it has held that certain
sections could not be changed even by referendum. Senior lawyer
R.K.W. Goonesekera made a strong argument during the proceedings
which the court would seem to have accepted, striking off clause
6 which states thus:
of Parliament who speaks or votes or abstains from voting on any
amendment to the Constitution contained here according to his own
belief or conscience or free will shall not be expelled or suspended
from membership or be subject in any disciplinary action by the
organised political party or the independent group as the case may
be on whose relevant nomination paper his name appeared at the time
of his becoming such member of Parliament for having so spoken or
voted or abstained from voting and the provisions of such paragraph
(a) of paragraph (13) of Article 99 shall not apply to such member
and the seat of such Member in Parliament shall not thereby become
But an independent
lawyer argues that this part of judicial review adopted by the Indian
Supreme Court, sometimes gives drafters nightmares by striking off
chunks from draft bills. "It is not the practice in our country
since there is no provision for judicial review here". But
he concedes that the Supreme Court decision is towards the right
The Supreme Court has, also ruled that the rest of the provisions
in clause 2,3,4 and 5 need to be approved by the people at a referendum.
experts have expressed their reservations on the subsequent suggestion
made by the Supreme Court that the fetter imposed on the President
by the constitution that the incumbent should not dissolve parliament
for one year could now be extended to three years by a two thirds
majority, terming it as unsolicited advice by the Supreme Court.
One legal expert
told this column that the court may have wished to please both sides,
by striking off one provision completely and making a suggestion
on a matter of policy.
who is close to the PA ranks said the court could have listened
to the other parties too before making a suggestion which he believed
to infringe on the policy. "It is more political than a judicial
decision," he added. The court may have had second thoughts
if they provided an opportunity to others on this question which
never did come up for a judicial decision.
appears that the 19th Amendment itself is a indictment on the UNP
lawyers and drafters who gave their mind to it for a long period.
is who drafted the 19th Amendment especially clause 6 of this amendment
on behalf of the UNF government? No doubt they put their hearts
and souls to it, but to no result.
believe that Chief Justice Sarath N. Silva is now in a stronger
position after the judgement on the 19th Amendment. During the past
two years, there have been moves to impeach him while even recently
charges were made against him at a BMICH ceremony attended by British
and Sri Lankan legal luminaries.
Can the government
now proceed with the move to impeach the Chief Justice?.
All this will
leave Prime Minister Wickremesinghe little flexibility to decide
as to what they should do next.
may be a snap poll. But the President once again challenges the
UNF, saying that she would not dissolve parliament.
70 there is a discretionary power given to the President to prorogue,
and dissolve Parliament, but a fetter has been placed in a subsequent
section saying the President however should not dissolve Parliament
within the first year after a general election unless resolved by
has now become the subject of discussion among political circles.
Some believe that even if parliament resolves to dissolve itself
within its first year, the President has the discretion to take
her own decision after assessing the situation in the country.
argue that the President's power is discretionary and not mandatory
though Parliament resolves by itself to dissolve it since the Article
by intention gives the discretionary power to the President when
it said, "the President may from time to time.."
argue that this discretion has been placed with a fetter when a
subsequent provision states that President shall not dissolve Parliament
unless it is passed by a resolution in Parliament.
the only instance the President could dissolve parliament within
the first year is when Parliament resolves by itself to do so and
therefore it is mandatory on the part of the President to dissolve
there is a controversy over this section, this also is likely to
go before the Supreme Court for a determination - but only if the
President challenges the UNF decision to go for a snap poll.
A snap poll,
places a burden on the entire country and its economy which has
faced two general elections in as many years. In the circumstances
it may be more appropriate for the government to go along with the
suggestion made by the Supreme Court to extend the limitation placed
on the President from one year to three years.
For this too
a two thirds majority in Parliament is required and it would be
done after having discussions with the President on the strength
of the letter issued by the President to the Speaker in terms of
Most of the
analysts are of the view that a three-year period would be sufficient
for a government to make itself popular if they really want to work
for the benefit of the people.
Now that the
crossovers may not happen after the Supreme Court ruling on the
19th Amendment, the government could work towards the alternate
solution offered by the Supreme Court which would lead to practical
cohabitation between the UNF and the executive President.
said that in that sense the court had acted in a responsible manner
understanding that there is a crisis brewing between the legislature
and the executive.
ruling has offered a way out through dialogue and co-habitation.
In fact the President at one stage expressed her willingness to
extend the fetter on dissolution. So in the circumstances, the court
has acted in the interest of the country," he added.
in all, the judgment had discouraged crossovers, which had in the
past reduced small parties to nothing or dead letters.
On the other
hand experts are of the view that the drafters have faulted when
drafting the preamble to the constitution.
In their opinion,
the preamble to the amendment should justify the amendment in terms
of the constitution which was lacking in this piece of legislation.
if the government is unable to go for a snap poll, it would need
to consider cohabitation because it would be rather difficult for
the government to muster a two thirds majority to pass the other
provisions in the amendment.