“The Head of State is the total repository of power with regard to dissolution of Parliament”

Sarath N. Silva said the President has very clear powers under Article 33(2)(c) to dissolve Parliament and that if the process of dissolution emanates from Parliament it has to follow Article 70. “We have inherited the Parliamentary system from the British. The Parliamentary system was introduced in England with a head of State who was the Queen. The head of state is the total repository of power with regard to dissolution of Parliament. Over the years there is a tradition that the head of State dissolves Parliament on the advise of the Prime Minister. The head of State under our Constitution is the elected President, who is elected by all the people in the country. Under Article 30 of the Constitution the President is the head of State, head of Government, commander-in-chief of the armed forces. There is no one above him. Dissolution of Parliament has always been under the executive power of the President originally under Article 70. In 2002, when Ranil Wickremesinghe was Prime Minister, 19A was introduced. It sought to remove the executive powers of the President to dissolve Parliament. There was to be an amendment to Article 70 to the effect that the President shall exercise that power only upon a resolution passed by a simple majority of Parliament. The Supreme Court held that the power of dissolution is executive power, that it has to be exercised by the President and that it has to be exercised in trust for the people. On that basis it was held that the amendment to Article 70 was dangerous to the sovereignty of the people and that the bill required a referendum. Then the Bill was withdrawn.

The drafters of the current 19A were well aware of this determination of the Supreme Court in 2002. There is a presumption that laws are enacted on the basis of the recent decisions of the Supreme Court. In the current 19A Article 33 was amended. Article 33(2)(c) reads that in addition to the powers conferred by the Constitution or other law the President shall have the power to summon, dissolve and prorogue Parliament. This is really referable to the Supreme Court judgement. Otherwise the 19A would have required a referendum. Article 62 states that unless Parliament is sooner dissolved it will continue for five years. So “sooner dissolved” is also referable to Article 33(2)(c). Then Article 70 under the chapter on Parliamentary proceedings was amended. It says that the Parliament shall not be dissolved unless after four and a half years or a resolution by Parliament with two thirds. On the face of it, this is contrary to the judgement of the Supreme Court. This is why overriding power was given to the President to exercise that power.”