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by W. K. Samarapala

Parliamentary session in progress

On 24.10.2002 a daily newspaper published a statement by two eminent retired Supreme Court judges, S. W. Walpita and R. S. Wanasundera, on the current constitutional issue, namely, whether the President is bound to dissolve parliament in case a resolution to that effect is passed by parliament. They emphatically state that the President is not bound to dissolve parliament on a parliamentary resolution.

With respect, I wish to examine this statement in the light of the arguments adduced by their Lordships and the provisions of our constitution. The basic premiss of their Lordships is expressed as follows, "We think it useful if we start by looking at Article 70 of the constitution which gives the President inter alia the power to dissolve parliament at her will and pleasure. This is an unfettered power. Article 70 (1) reads as follows:

'The President may from time to time, by proclamation summon, prorogue and dissolve parliament Provided that: (a) Subject to the provisions of sub-paragraph (d) when a general election has been held consequent upon a dissolution of parliament 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 parliament by resolution requests the President to dissolve parliament'".

Their Lordships then proceed to express their Lordships' opinion as to the position in the event of the parliament passing a resolution requesting the President to dissolve parliament. Their Lordships say, "It (such a resolution) is not mandatory, in fact it cannot be. It is only advice given by the parliament. The parliament cannot interfere with the executive powers of the President".

Thus it becomes clear that according to their Lordships opinion Article 70 of the constitution of the Democratic Socialist Republic of Sri Lanka confers an unfettered executive power on the President to dissolve or not to dissolve parliament at her will and pleasure and that a resolution by parliament requesting the President to dissolve parliament has no binding effect on the President. With respect, I beg to disagree.In the first place, let us not lose sight of the fact that Article 70 of the constitution is not an Article dealing with the executive powers of the President. Article 70 is embodied in Chapter XI of the constitution which deals with the Legislature and not the Executive.

The title of chapter XI is 'The Legislature - Procedure and Powers'. Furthermore, the marginal note to Article 70 reads 'Sessions of parliament'. As the two learned judges are well aware our constitution admits of the Doctrine of Separation of Powers and as such separate chapters are assigned to the three major sectors, the Executive, the Legislature and the Judiciary.

Chapters VII, VIII and IX deal with the Executive; Chapters X, XI and XII deal with the Legislature and Chapters XV and XVI deal with the Judiciary. However, since separation of Powers does not mean isolation of powers or keeping the Executive, the Legislature and the Judiciary under three watertight compartments, incidental references to the powers and functions of one department in relation to the powers and functions of another department are inevitable. in order to assess the constitutionally inherent and substantive powers of each department we must refer to the relevant Chapter and the relevant Article.

Article 70 (1) of the constitution on which the two learned judges rely primarily deals with the sessions of parliament and it only says that sessions of parliament are commenced and terminated by Presidential Proclamation under certain restrictions. Then, the next Article, that is Article 71 deals with the adjournment of parliament, Article 72 deals with voting in the parliament, Article 73 deals with the quorum of the House and so on. Therefore to say that Article 70 confers an unfettered executive power on the President to dissolve or not to dissolve parliament at her will and pleasure is a misreading in total disregard of the basic tenor and the general purport of the constitution.

To ascertain whether the President has such executive power to dissolve or not to dissolve parliament at her will and pleasure we must refer to Chapter VII of the constitution entitled 'The Executive The President of the Republic'.

This Chapter contains twelve Articles, Article 30 to Article 41 both inclusive. Each one of these twelve Articles deals with some aspect pertaining to the President. Article 30 has the effect of constituting the office of President and enacts that the President shall be elected by the people, Article 31 deals with the election of the President; Article 32 deals with the assumption of office by the President; Article 33 deals with the powers and functions of the President; article 34 deals with the grant of pardon to offenders by the President; Article 35 deals with the President's immunity from suit.... and so on. Thus it is to Article 33 and not to Article 70 that we should refer to discover the powers and functions of the President because that is the Article which primarily and exclusively deals with the powers and functions of the President.

Article 33 reads as follows;

"In addition to the powers and functions expressly conferred on or assigned to him by the constitution or by any written law whether enacted before or after the commencement of the constitution the President shall have the power.

(a) to make the statement of Government policy in parliament at the commencement of each session of parliament.

(b) to preside at ceremonial sittings of parliament

(c) to receive and recognize and to appoint and accredit Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents

(cc) to appoint as President's Counsel attorneys-at-law who have reached eminence in the profession..... and so on.

(d) to keep the Public Seal of the Republic and to make and execute under the Public Seal the Acts of Appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the Chief Justice and other Judges of the Supreme Court..... and so on

(e) to declare war and peace and

(f) to do all such acts and things not being inconsistent with the provisions of the constitution or written law as by international law, custom or usage he is required or authorized to do."

There is no reference to an executive power of the President to dissolve or not to dissolve parliament at her will and pleasure in Article 33. If it was the intention of the framers of the constitution to confer such an important power on the President they would undoubtedly have directly inserted a sub-paragraph in Article 33 to read," The President shall have the power to summon, prorogue and dissolve parliament" instead of squeezing it into a provision dealing with the Legislature thus leaving it to be implied.

Therefore it is my humble submission that our constitution does not confer a power on the President to dissolve or not to dissolve parliament at her will and pleasure.

But, then on what ground to the two learned judges referred to above say that the President has unfettered power to dissolve parliament? The only way how the absence of a direct conferment on the President the power to dissolve parliament in Article 33 can be reconciled with the statement of the two learned judges is to resort to the opening words of Article 33, "In addition to the powers and functions expressly conferred on or assigned to him by the constitution or by any written law" thereby paving the way to bring in Article 70 into focus.

Of course, Article 33 is not exhaustive of the powers of the President. But that does not per se permit us to read an executive power into Article 70. A careful reading of the opening words of Article 33 reveals that they recognize two areas of operation namely powers and functions.

Powers are 'conferred on' the President; functions are 'assigned to' the President. My position is that the dissolution of parliament is a 'function assigned to' the President under Article 70 (1) and not a 'power conferred on' the President for if it is a power its significance is so great that it must come into Article 33.

My humble opinion is that the two learned judges misread Article 70 (1) and it is borne out by a grave contradiction their Lordships have fallen into in their Lordships' statement. Referring to a parliamentary resolution requesting the dissolution of parliament during the first year, the statement says, "The resolution is not mandatory, in fact it cannot be. It is only advice given by the parliament.

The parliament cannot interfere with the executive powers of the President." In the same breath the statement goes on to say, "The proviso fettered the right the President had to dissolve parliament or not dissolve given in the main part of Article 70 during the first year after a general election. A resolution of parliament only removed that fetter and restored to the President the freedom of action given under Article 70". If it is an 'executive power' that the President exercises in dissolving parliament and if the parliament cannot interfere with the executive powers of the President then how can a parliamentary resolution remove a fetter on her powers imposed by the constitution and restore that power to the President? Is that not interference with the executive powers of the President?

It is my view that this anomalous position stems from the mistaken notion that the President has power to dissolve or not to dissolve parliament at her will and pleasure.

This anomaly vanishes when we view the different constitutional provisions in the correct perspective and consider the action of the President in dissolving parliament as a performance of a function assigned to her by the constitution.

It is such actions that are envisaged in the last paragraph of Article 33 which deals with the powers and functions of the President.

That paragraph reads, 'to do all such acts and things not being inconsistent with the provisions of the constitution or written law as by international law, custom or usage he is required or authorized to do'. I have not the least doubt that the two learned judges would agree that the usage in any parliamentary democracy is that the Head of State unhesitatingly dissolves parliament if the parliament so requests.

In conclusion let me refer to Article 42 of our constitution.

It reads, '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 including the law for the time being relating to public security.' If the President has the power to dissolve or not to dissolve parliament at her will and pleasure then what conceivable meaning can be read into this Article? How can the President be responsible to parliament if she can ignore a parliamentary resolution and act according to her will and pleasure?

Therefore my submission is that in dissolving parliament the President performs a function assigned to her by the constitution and in performing that function she is bound to act according to the will of the parliament expressed by way of a parliamentary resolution.

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