The conundrum about the prorogation of Parliament

Saturday, 3 November 2018 00:10 -     - {{hitsCtrl.values.hits}}


There is a big debate going on about the President’s decision to prorogue the Parliament of Sri Lanka. Apparently foreign parties and missions too are getting involved in the commotion, according to the reports in circulation. It is prudent to examine this in more detail because of the underlying dubiosity.

Constitutional position

In the original Constitution of Sri Lanka, before it was amended last under the 19th Amendment, the governing provision for the prorogation of Parliament reads as follows;

70 (1) The President may, from time to time, by proclamation summon, prorogue and dissolve Parliament provided that;

Such an action would be subject to the other provisions in the sub-sections of the articles dealing with the dissolution and prorogation.

This section was amended under the 19th Amendment by repealing paragraph (1) quoted above of that article and by substituting the following;

“(1) The President may by Proclamation, summon, prorogue and dissolve Parliament…’

Provided such decision is taken in accordance with the provisions applicable for the dissolution and prorogation of the Parliament.

As it stands for the purpose of our discussion the articles applicable for the dissolution are irrelevant. What is relevant and in force in the constitution with regard to the prorogation are as follows;

Article 70 (3), A proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation: Provided that ,at any time while Parliament stands prorogued, the President may by Proclamation – 

Summon the Parliament for an earlier date, not being less than three days from the date of such proclamation, OR

Subject to the provisions of this Article, dissolve Parliament.

Article 70(4), all matters which, having been duly brought before Parliament, have not been disposed of at the time of the Prorogation of Parliament, may be proceeded with during the next session.

Accordingly, these are the only articles relevant to the prorogation of Parliament by the President.

Therefore there is no Constitutional violation in the proclamation made by the President to prorogue the Parliament. As he has acted under the Constitution there is no need for any external influence to urge him to convene the Parliament before the scheduled date. 

The dates of the next session may have been fixed by the President taking into consideration the things that have to be done during the period the Parliament stands prorogued. It becomes totally an act of buffoonery to insist and demand an earlier meeting date of the Parliament disregarding the preceding actions and preparation required prior to the date fixed.

Position of the Parliamentarians

The claim/demand to reconvene the Parliament appears to be a move to appease the party supporters of the constituent parties in the UNFGG who are tormented by the surprise move of dethroning their leader. Those who advocate and ostensibly hang on to such a ruse are doing so only to help the supporters to overcome their shock. They know very well that there are provisions clearly enshrined in the constitution empowering the President to prorogue the Parliament.

Prorogation of the Parliament is nothing new to Sri Lanka. From 1947 the Parliament has been prorogued about 50 times. After the new Republican Constitution in 1978, 25 sessions of the Parliament have been prorogued. Parliament has been reconvened during the period of prorogation in 1958 by Governor General Sir Oliver Goonetilleke to declare a state of emergency. But for reasons best known to them certain foreign countries have expressed their concern about the recent prorogation. 

The subject has been raised in the British Parliament and some members in the House of Commons have expressed views about the removal of Ranil Wickremesinghe as the Prime Minister. They have to be informed that what the country has done is appointing a new Prime Minister due to the ceasing of the office of the Prime Minister under certain provisions of our written Constitution unlike in Britain.

Due to the sudden withdrawal of the main constituent party UPFA from the National Government, it became necessary for the President to reconstitute the Cabinet in line of the Constitutional provision of limiting it to 30 members from the current numbers exceeding the maximum that could be accommodated under a normal Coalition Government.

Arising out of this situation, exercising his powers under Article 43(3) of the 19th Amendment adopted under the Ranil Wickremesinghe Government, the President has taken steps to change the assignment of subjects, and functions and composition of the Cabinet of Ministers.

But according to Article 46(2) the Prime Minister shall continue to hold office only during the period which the Cabinet of Ministers continues to function. The office of the PM ceases when the Cabinet is reconstituted.

Then according to Article 42(1), the President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.

Perhaps those expressing contrary views may be unaware of these legal provisions enshrined in our Constitution.

Some of the foreign countries concerned about our issues have their own issues unsettled. Canada is still debating about the pros and cons of Prorogations. The country is still debating about inconsistent precedents regarding earlier prorogations.

MP Ajith Perera who is the Spokesman of the UNP, showed Erskine May’s volume in a media conference to give the impression that the former British Constitutional theorist Erskine May holds a different view about our situation in his book ‘Parliamentary Practice’. But this is what he has stated; “The prorogation of parliament is a prerogative act of the Crown.”

He has further stated in his 24th edition: “The effect of a prorogation is at once to suspend all businesses including committee proceedings until parliament shall be summoned again, and to end the sittings of parliament….”

Ironically, Perera’s references remind us about his exhaustive intervention and attempt to include some irrelevant footnotes into the final COPE report on the Central Bank bond scam which everybody knew was aimed to whitewash the sordid episode!

The Indian situation is slightly different due to specific provisions in the Constitution. The President who has the power to prorogue has to, in exercising this power acting on the advice of the Prime Minister.

The very fact that such a clause is included shows that without such a clear directive there is no necessity to consult anyone before exercising the power to prorogue. This is our situation.

Perera has to be reminded about the history of exercising of presidential powers in dissolving the Parliament suddenly on the day the first COPE report on the bond scam was to be tabled under the advice of Prime Minister Ranil Wickremesinghe! No consensus was sought in that exercise but relied entirely on the Constitutional powers disregarding unhealthy consequences associated with that dissolution.

The Constitution of Sri Lanka (before and after all the amendments) clearly provided the powers to the President to remove the Prime Minister. The 1978 Constitution provided for the removal of the Prime Minister by the President issuing a letter to that effect under his hand.

In the amended version (19A) article 48(1) the circumstances under which the Prime Minister ceases to hold office are; By removal from his office; Resignation OR otherwise.

Removal from office is the same power given to the President under the amended Constitution which however was more fully elaborated in the previous Constitution.

It is therefore clear that the removal and appointment of a Prime Minister, a new Cabinet of Ministers and the prorogation of the Parliament are acts in conformity with Constitutional provisions.

Recent columns