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by D. L. Ubeywarna

The current political dissension in the country postulates an impending threat to the supremacy of parliament again, since the President is empowered by Article 70 (1) (a) of the constitution to dissolve parliament, with alacrity, at any time at the expiry of one year from the date of the last general election.

Every time a government not of the political party to which the President belongs gets elected, the supremacy of parliament is at stake. The life of parliament became vulnerable to her decision & she dissolved her own government, not long before, but last year. The dissolution procedure embodied in Article 99 of the 1972 Constitution gave no such authority to the (then) president and it was consistent with the supremacy of parliament.

According to A. V. Dicey - 'Law of the Constitution'. (10th, edition) (pp. 39-40) "The supremacy (sovereignty) of parliament means, in the first place the right of parliament to make or unmake any law whatever. Thus, to exercise the aforementioned right of parliament without fear or favour, the legislation must have a constitutional guarantee against a premature, sudden dissolution by the President. Nothing other than a constitutional amendment abrogating the presidential authority in this regard could provide with the necessary guarantee. Any number of promises, memoranda of understanding, exchange of letters are cut of context and purely irrelevant in this instance for want of constitutional backing.

Yet, the proposed constitutional amendment provides with a golden opportunity for them to substantiate the genuineness of such devices by promoting the easy passage of the amending Bill which requires a special majority of two third in parliament.

"Cohabitation"

A comparative analysis of the power to dissolve parliament would reveal that our constitutional provisions such as Article 70 (1) are heavily weighted in favour of the President whereas the French arrangement known as "cohabitation" has been spelt out in (France) in the Constitution itself: Article 12 of the Constitution of the Fifth Republic of France envisages certain amount of compromise among the President of France, the Prime Minister and also the presidents of the houses.

Article 12 (of the French constitution) categorically declares that, "The President of the Republic may dissolve the National Assembly after consulting the Prime Minister and the Presidents of the Houses....."

Similarly, Article 27 (1) of the former (i.e.1972) constitution of Sri Lanka made it imperative for the President to act on the advice of the Prime Minister "The President shall always except as otherwise provided by the constitution act on the advice of the prime minister".

But, quite opposed to "the concept of responsibility to Parliament" and compromise, Article 70 (1) of the 1978 (present) constitution of Sri Lanka declares that, "The President may from time to time by proclamation, summon, prorogue, and dissolve parliament......".

Responsibility

However, "the principle of responsibility to Parliament" embodied in Article 42 of the constitution clearly imposes an imperative limitation to the executive authority conferred on the President: "The President shall be responsible to parliament for the due exercise. Performance and discharge of this powers, duties and functions under the constitution and any written law. Including the law for the time being relating to public security. "(Similar provision had been made by Article 91 of the 1972 Constitution.)

The people of Sri Lanka witnessed a period of peaceful coexistence and mutual harmony between the President and Parliament (and also among the President, the Prime Minister and the Ministers of the Cabinet) during President D. B. Wijetunga's presidency when the People's Alliance (PA) formed the Government with the incumbent President as the Prime Minister. Probably President Wijetunga may have well understood and realized, inter alia, that Article 42 of the Constitution categorically gave him no option to act irresponsibly to Parliament and also he may have properly estimated the intrinsic value of broad consensus and compromise.

Amendment

Some political parties and some members of such political parties seem to be against the proposed Amendment designed to divesting the President of her executive authority to dissolve Parliament after one year from the date of a general election. They seem to oppose on the proposition that the whole constitution with the executive Presidency has to be repealed and any piecemeal amendments to the Constitution which has already undergone several amendments could not be approved or endorse.

In this instance, is it not pertinent to raise the question as to whether they have not approved and supported the piecemeal (Constitutional Council) Amendment relating to the path leading to the creation of Independent Commissions?

Their arguments seem to be something like the "proverbial insistence on seven layers and something more of 'gnat oil' for the medication that would never emerge or be prepared." (Nokerena vedakamatha konduru thel hathpattayakuth thawa tikak). In my opinion, their arguments in this connection seem to be counter-productive and reactionary at this critical stage when they do have a duty by the people of this country who underwent the tumult of two parliamentary general elections within a short period of two years, to constitutionally ensure that there would not be a third general election before one year in the event of Parliament passing a resolution for its dissolution or after one year if the President selects to do so. Parliament derives authority from Article 70 (1) (a) to pass a resolution requesting the President to dissolve Parliament before the expiry of one year and the President by the same Article is empowered to dissolve Parliament on her own after the expiry of one year from the date of the last General Election. (which was held on 05.12.2001).

The mandatory responsibility cast on the president under article 42 of the constitution does not permit her to be irresponsible to parliament or refuse a parliamentary resolution made under article 70 (1) (a), to dissolve parliament. (The President shall not throw away such a resolution as utter rubbish or incoherent gibberish.) Dr. N.M. Perera, while analyzing Article 70 (1) (a) of the Constitution (at pp.53-54 of his booklet titled "Critical Analysis of the New Constitution of the Sri Lanka Government" (Reprint: September 1991), recognizes the constitutionality (of Parliament itself) to request a dissolution by resolution. However, he asserts that: "We have yet to come across a Parliament that is so fatuous as to commit political hara-kiri so nobly and so magnanimously."

In the present context, those who oppose restoration of the supremacy of parliament, may, perhaps be committing political hara-kiri. They may at least now, realize the shallowness of their 'arguments' against amending the Constitution so as to protect the country from facing a third general election soon. They seem to prefer repealing the constitution to amending.

A static constitution may not be suitable for a dynamic society undergoing fundamental changes in political, social, economic, cultural, racial spheres. Hence the necessity to amend a constitution from time to time. It is very dangerous to replace a Constitution of a country with a totally new one (repeal) haphazardly, hurriedly and carelessly every now and then or when a simple amendment 'could do the job'. Our country indeed, is in need of the proposed simple urgent amendment to the Constitution. The proposed amendment seeking to regain, foster and nurture the Supremacy of parliament (against uncertainty of its period of duration) is of equally important to all Members of Parliament in view of the colossal expenditure involved in elections.

Let us now examine the rationality or otherwise of the contention that the Constitution has already undergone 17 or 18 amendments and ipso facto unsuitable and faulty and no further amendments should be made. This objection is not only irrational, but also unempirical, 'non-academic' and counter-productive for the following reasons.

Excepting the 13th Amendment of November 1987 (containing 42 pages) which introduced certain fundamental changes such as "Tamil (language) shall also be an official language." (vide Article 2 (b) (2) of the 13th Amendment, Amending Article 18 of the Constitution) and the introduction of the provincial council system to the country, almost all other Amendments are very short, interpreting or clarifying a word or two in the actual working process.

The Constitution of The United States of America, adopted in 1789 (more than two centuries ago) is still in force and has not been replaced or repealed, but has been amended to the extent of several dozens of Amendments, keeping abreast of times.

In these circumstances, those who oppose the proposed Amendment may, at least now realize the shallowness of their objection and co-operate in the process towards regaining the Supremacy of Parliament. The man on the Clapham omnibus abhors annual general elections devastating the country's economy and raising the cost of living. Thus, he would not hesitate to reject any individual/any political party prone to reject his will. Hence it would be of lasting benefit to active politicians and political leaders if the whole strategy of opposing anything and everything for the sake of opposing were surrendered, since the practical man's answer to problems is something different.

While dealing with the sub-topic: "The Supremacy of Parliament comes from the Law", Sir Ivor Jennings asserts that, "The Difficulty of proving a fundamental problem of this nature is that our laws and our institutions have grown together; and what had to be produced was not a theoretical solution but a modus vivendi. A practical man's answer to current problems." (- The Law and the Constitution - (5th edition p 157) - Sir Ivor Jennings).

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