Is Pres­i­dent Sirisena’s ac­tion legally ten­able?

Lawyers split over con­sti­tu­tional va­lid­ity of dis­so­lu­tion

The Hindu - - NEWS - Meera Srini­vasan

From the time Pres­i­dent Maithri­pala Sirisena sacked Mr. 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 twothirds 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.

Maithri­pala Sirisena

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