3RD DECEMBER 2018.
Lawyers for Democracy Response to Mahinda Rajapakse’s Misleading Statement made in the wake of the Supreme Court case.
Lawyers for Democracy expresses its serious concern on the attempt by Mahinda Rajapakse, MP for Kurunegala District, to mislead the country by issuing an unusual statement on the matter of the dissolution of Parliament, while it is pending before the Supreme Court. While we are confident that the judiciary of this country, whose independence has been strengthened by the Nineteenth Amendment, will not be influenced by misleading statements of politicians, we nevertheless wish to respond to a number of factual inaccuracies in the said statement that may mislead ordinary citizens not well-versed in matters of the Constitution, especially events abroad.
Rajapakse cites the British constitutional authority A.V. Dicey as having said that if the Crown is of the view that the opinion of the public is different to that of the majority in Parliament, the Crown has the discretion to dissolve Parliament and call a general election. Dicey who wrote Law of the Constitution as far back as in 1885, refers to the dissolution of the House of Commons in 1784 and 1834. But unknown to Rajapakse and his advisors, and this is not surprising, the United Kingdom has since seen many changes regarding the Monarch’s power of dissolution. No British Monarch has in modern times dissolved the House of Commons without the advice of the Prime Minister. In 2011, Westminster passed the Fixed-term Parliaments Act, which lays down that an early General Election shall not be called unless the Commons requests a General Election by a two-thirds majority. An early election will also take place when a vote of no-confidence is passed against the Government unless a vote of confidence is passed within 14 days of the vote of no-confidence, that is unless a new Government is formed and is to able prove its majority in the Commons within 14 days. But unlike the United Kingdom where there is no written constitution, Sri Lanka has a written constitution which has clear provisions relating o dissolution.
Rajapakse also states that in 1975, the Governor General of Australia sacked Prime Minister Gough Whitlam and called a general election entirely at his own discretion. This is furthest from the truth. Unlike in Sri Lanka, Australia has two Houses of Parliament. Section 57 of the Australian Constitution, if the Senate rejects or fails to pass a Bill that has been passed by the House of Representatives twice the Governor-General may dissolve both House simultaneously. But by convention, he would do so only on the advice of the Prime Minister. In 1975, the Senate had deferred two Appropriation Bills which had already been passed by the Lower House. Prime Minister Whitlam refused to advice a dissolution and the Governor-General dismissed Whitlam and appointed Malcolm Fraser as Prime Minister as caretaker Prime Minister upon the latter undertaking to have the Bills passed in the Senate and that he would advise the Governor-General to dissolve both Houses. Before doing so, the Governor-General consulted the Chief Justice who advised him that the Prime Minister could be replaced in the given circumstances. The Governor-General then dismissed Whitlam, appointed Fraser as Caretaker Prime Minister and dissolved both Houses on the advice of Fraser.
Rajapakse’s says that the Indian President dissolved the Lok Sabha in 1970 and 1979 on his own. This again is utterly misleading. In December 1970 President Giri dissolved the Lok Sabha upon the advice of Prime Minister Indira Gandhi and a request by the Cabinet of Ministers after the Congress Party had broken up. Although it was a minority government, it had not been defeated in Parliament on any question. In 1979, dissolution was on the advice of Prime Minister Charan Singh while the Lok Sabha was in prorogation, again on the advice of the Prime Minister.
What needs to be emphasized is that the constitutional provisions relating to dissolution in Sri Lanka are quite different. Ours is not a Westminster form of government but still a hybrid. The President has no prerogative powers that he may use at will. His powers are limited by express provisions of the Constitution which he has affirmed to uphold.
Lal Wijenayaka
K.S. Ratnavale
Lakshan Dias,
Sudath Neththasinghe
Harishka Naeeshan
Praboda Ratnayaka
On behalf of Lawyers for Democracy