-By Neville Ladduwahetty-
The Hansard of September 3, 2015 under the heading "DETERMINATION UNDER THE CONSTITUTION: NUMBER OF MINISTERS OF NATIONAL GOVERNMENT", cites the following Resolution:
"Whereas the United National Party which obtained the highest number of seats in Parliament has formed a National Government, Parliament determines in terms of Article 46 (4) of the Constitution of the Democratic Socialist Republic of Sri Lanka that the number of Ministers in the Cabinet of Ministers shall not exceed 48 and the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers shall not exceed 45" (p. 97).
An intense debate followed the tabling of the above resolution. The position of the Government was that according to Article 46 (4) when a "… recognized political party or independent group which obtains the highest number of seats in Parliament forms a National Government", the Constitution authorizes Parliament to determine the number of Ministers of the Cabinet of Ministers, the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers. And because it is Parliament that makes such a determination a challenge would amount to a beach of Parliamentary privilege (The Island, May 26. 2016).
Judging by the variety of opinions expressed in Parliament the single question that dominated the debate related to the criteria needed to qualify for the formation of a National Government. The opinions of some were that since Article 46 (5) states: "National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties …" a National Government must include all recognized political parties represented in Parliament. Others maintained that since the Article 46 (5) specifically does not state that a National Government means a Government formed together with "all" recognized political parties or the independent groups it could mean one or more recognized political parties. Yet others were insistent that Parliament should seek an opinion from the Supreme Court not only because of the lack of clarity but also because of the implications involved.
NEED for INTERPRETATION
During the debate The Hon. (Dr.) Wijeyadasa Rajapakshe stated:
"When we obtained that interim order, there had been a lengthy debate in the House. After considering all the legal provisions and submissions, the Hon. Anura Bandaranaike delivered a historical, landmark judgment that when it comes to affaires which are to be regulated within the House itself, it is purely a matter to be determined by the Hon. Speaker; it is not a matter within the purview or the jurisdiction of the Supreme Court" (The Hansard, September 3, 2016, p. 110).
"I can remember when there was a Resolution with regard to the impeachment of the former Chief Justice, then Speaker, the Hon. Chamal Rajapaksa also, by following the landmark Ruling of the Hon. Anura Bandaranaike, came to the same conclusion that when it comes to matters within the purview of the House it is to be regulated by the House itself and that the court need not interfere and the court should not interfere" (Ibid).
"Therefore, the question as to whether there has to be any determination from the Supreme Court with regard to the interpretation of the National Government is completely out and there is no relevance, no bearing whatsoever. Therefore, I would humbly like to inform the Hon. Speaker that this Determination is well within the purview of Parliament and it has to be finally determined by the Hon. Speaker" (Ibid).
The Hon (Dr.) Jayampathy Wickramaratne quoting from a section that was included in the Draft version of the 19th Amendment stated: "If at the conclusion of the General Election held immediately after the coming into force of this Article, the recognized political party or the independent group obtaining highest and the recognized political party or the independent group obtaining the second highest number of seats in Parliament agree to form a Government of national unity…".
However, the concept of a Government of "national unity" in the original draft was evidently abandoned and instead the final version incorporated the concept of a "National Government". This reflects the difficulties the Drafters of the 19th Amendment had in providing for an arrangement in the event no party secured an outright majority to form a Government. Also, the statement of The Hon. (Dr.) Wijeyadasa Rajapakshe that an interpretation of a National Government from the Supreme Court is "completely out" must mean that such an interpretation would be made by Parliament alone. However, a fact that should not be overlooked is that while this may apply to Governments that function under Parliamentary systems, it does NOT apply in Presidential Systems that operate under provisions of Separation of Powers. This Separation of Powers is the bedrock of Presidential Systems under which Sri Lanka operates.
RELEVANCE of RULINGS by FORMER SPEAKERS
The precedents cited by Hon. (Dr.) Wjeyadasa Rajapakshe relate to Supreme Court interventions in respect of the impeachment of former Chief Justices. Indeed the Supreme Court does not have jurisdiction over issues relating to the conduct of members of the Judiciary. Such tasks are entirely within the domain of Parliament as stated in Article 107 (2) of the 1978 Constitution which states:
"Every such Judge (Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal from 107 (1)) shall hold office during good behavior, and shall not be removed except by an order of the President made after an address of Parliament…". In the absence of any ambiguity in Article 107 (2) there is no dispute that issues relating to the conduct of senior members of the Judiciary are solely within the purview of Parliament; a fact obvious to ordinary laymen. Under the circumstances, apart from the considerable body of reference material in the 25 page report, one might question whether the ruling really reaches the threshold of being a "historical land mark judgment".
A further matter of relevance is that the references cited by former Speakers are mostly British opinions that are relevant ONLY in a Parliamentary system of Government. Since under such systems Parliaments are supreme the opinions cited have relevance to Sri Lanka ONLY up to and until the introduction of the 1978 Constitution. The current Constitution is based on Separation of Powers. The COMMONWEALTH PRINCIPLES ON THE ACCOUNTABILITY OF AND THE RELATIONSHIP BETWEEN THE THREE BRANCHES OF GOVERNMENT Section (ii) Parliament and the Judiciary state: "Relations between parliament and the judiciary should be governed by respect for parliament’s primary responsibility for law making on the one hand and or the judiciary’s responsibility for the interpretation and application of the law on the other hand".
Based on the above principles, the functions of each branch of Government are governed by the provisions in the Constitution. Article 125 unequivocally states that the task of interpreting the Constitution is assigned to the Judiciary, thus: "The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to interpretation of the Constitution…".
Therefore the arguments advanced during the debate and the opinions cited to justify that an interpretation by the Supreme Court is "completely out", are flawed. On the other hand, it is abundantly clear that an interpretation is needed as to whether the current formation of the Government meets the Constitutional provisions of a "National Government". The only authority constitutionally authorized to do so is none other than the Supreme Court.
CURRENT FORMATION of the GOVERNMENT
The resolution presented to Parliament states that the "United National Party which obtained the highest number of seats in Parliament has formed a National Government". This is a self-proclaimed declaration. Therefore, there is a need to explore whether the current formation of the Government meets the test of a "National Government".
The current Government formation is made up of the UNP with its 106 members who were elected to Parliament together with a section of the UPFA that contested the General Election of August 17, 2015 and secured 95 Parliamentary seats. The rest of the UPFA are in the Joint Opposition. Consequently, the UPFA is divided between those that are with the so called National Government and those of the UPFA that are with the Joint Opposition.
The current formation of the Government is not a "Government of national unity" as referred to by Hon. (Dr.) Jayampathy Wickramaratne because it is not made up of the first and second political parties to secure the highest number of seats at the August 17th Election. Nor, is the current formation a traditional coalition where one or more political parties represented in Parliament come together in their entirety to form a majority Government.
Furthermore, it is not a National Government, whether such a Government is described as one made up of all or some of the political parties represented in Parliament. This is because a National Government is formed when the political party with the highest number of seats joins "with the other recognized political parties" to form a Government. In such a formation, whether one or more recognized political parties join to form a National Government is not the overriding issue. Instead, the more compelling issue is that the entirety of a recognized political party or parties commits to be part of the National Government. However, since the current Government is made up of the 106 members of the UNP together with ONLY a SECTION of a recognized political party, the UPFA, while the rest is with the Joint Opposition, the current formation is not a National Government. Therefore, the current formation is in violation of the constitutional provisions in Article 46 (4) and (5) of the Constitution.
The reason for a section of the UPFA being with the Government with the rest being in the Joint Opposition is because of purported "understandings" reached between the leaderships of the UNP and the UPFA. This has violated the Franchise of the voter who voted for the UPFA. Furthermore, because of the "understanding", the section of the UPFA identified as the Joint Opposition is unable to function as a legitimate Opposition in a Democracy. These developments are not the result of individual action of some members of Parliament joining a Government, but due to the administrative action of the leadership of the party to which these members belong. Therefore, the UPFA leadership is responsible for violating the Franchise and through it the Sovereignty of the electors who voted for the UPFA.
CONCLUSION
The Resolution under the Heading "DETERMINATION UNDER THE CONSTITUTION: NUMBER OF MINISTERS OF NATIONAL GOVERNMENT" states that the UNP which obtained the highest number of seats in Parliament at the August 17, 2015 General Election "has formed a National Government". This self-declaration entitles the Government to determine the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet Ministers and Deputy Minister beyond the limits set in Article 46 (1), which is a total of 70, with the approval of Parliament.
A challenge to the self-declaration is seen as a threat to the privileges of Parliament. The reason for such a perception is based on the notion that a determination made by Parliament cannot be challenged because Parliament is supreme. The evidence presented in support of the supremacy of Parliament during the debate on Sept. 3, 2015, was the ruling given by a former Speaker, Hon. Anura Bandaranaike. However, this ruling and nearly all citations that accompanied the ruling were based on the practices and precedents in the UK, which is the mother of Parliamentary systems of Government. Although this ruling is acclaimed as a landmark judgment, what it overlooked was that when the ruling was given Sri Lanka did not have a Parliamentary system of Government, but had a Presidential System that operates on Separation of Powers. Consequently, Parliament is but one of the 3 Branches of Government. And interpreting the Constitution is exclusively assigned constitutionally by Article 125 to the Supreme Court.
Therefore, in the name of Good Governance there is a compelling need to seek an interpretation from the Supreme Court as to whether the current formation of the Government is in fact a National Government, because the current Government is formed by the UNP that obtained the highest number of seats in Parliament together with ONLY a SECTION of a recognized political party that contested the August 2015 General Election while the rest is with the Joint Opposition. This division has caused the Franchise and therefore the Sovereignty of ALL the People who voted for the UPFA to be violated.
The opportunity to seek an interpretation from the Supreme Court is provided ONLY under provisions of Separation of Powers unlike when all power is vested in a single body, the Parliament, and the fortunes of the People are at the mercy of a Parliament alone. The exercise to determine whether the current Government is a National Government presents an opportunity that should not be missed by those currently engaged in Constitution making to decide which form of Government would best protect the interests and sovereignty of the Peoples of Sri Lanka.
The Hansard of September 3, 2015 under the heading "DETERMINATION UNDER THE CONSTITUTION: NUMBER OF MINISTERS OF NATIONAL GOVERNMENT", cites the following Resolution:
"Whereas the United National Party which obtained the highest number of seats in Parliament has formed a National Government, Parliament determines in terms of Article 46 (4) of the Constitution of the Democratic Socialist Republic of Sri Lanka that the number of Ministers in the Cabinet of Ministers shall not exceed 48 and the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers shall not exceed 45" (p. 97).
An intense debate followed the tabling of the above resolution. The position of the Government was that according to Article 46 (4) when a "… recognized political party or independent group which obtains the highest number of seats in Parliament forms a National Government", the Constitution authorizes Parliament to determine the number of Ministers of the Cabinet of Ministers, the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers. And because it is Parliament that makes such a determination a challenge would amount to a beach of Parliamentary privilege (The Island, May 26. 2016).
Judging by the variety of opinions expressed in Parliament the single question that dominated the debate related to the criteria needed to qualify for the formation of a National Government. The opinions of some were that since Article 46 (5) states: "National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties …" a National Government must include all recognized political parties represented in Parliament. Others maintained that since the Article 46 (5) specifically does not state that a National Government means a Government formed together with "all" recognized political parties or the independent groups it could mean one or more recognized political parties. Yet others were insistent that Parliament should seek an opinion from the Supreme Court not only because of the lack of clarity but also because of the implications involved.
NEED for INTERPRETATION
During the debate The Hon. (Dr.) Wijeyadasa Rajapakshe stated:
"When we obtained that interim order, there had been a lengthy debate in the House. After considering all the legal provisions and submissions, the Hon. Anura Bandaranaike delivered a historical, landmark judgment that when it comes to affaires which are to be regulated within the House itself, it is purely a matter to be determined by the Hon. Speaker; it is not a matter within the purview or the jurisdiction of the Supreme Court" (The Hansard, September 3, 2016, p. 110).
"I can remember when there was a Resolution with regard to the impeachment of the former Chief Justice, then Speaker, the Hon. Chamal Rajapaksa also, by following the landmark Ruling of the Hon. Anura Bandaranaike, came to the same conclusion that when it comes to matters within the purview of the House it is to be regulated by the House itself and that the court need not interfere and the court should not interfere" (Ibid).
"Therefore, the question as to whether there has to be any determination from the Supreme Court with regard to the interpretation of the National Government is completely out and there is no relevance, no bearing whatsoever. Therefore, I would humbly like to inform the Hon. Speaker that this Determination is well within the purview of Parliament and it has to be finally determined by the Hon. Speaker" (Ibid).
The Hon (Dr.) Jayampathy Wickramaratne quoting from a section that was included in the Draft version of the 19th Amendment stated: "If at the conclusion of the General Election held immediately after the coming into force of this Article, the recognized political party or the independent group obtaining highest and the recognized political party or the independent group obtaining the second highest number of seats in Parliament agree to form a Government of national unity…".
However, the concept of a Government of "national unity" in the original draft was evidently abandoned and instead the final version incorporated the concept of a "National Government". This reflects the difficulties the Drafters of the 19th Amendment had in providing for an arrangement in the event no party secured an outright majority to form a Government. Also, the statement of The Hon. (Dr.) Wijeyadasa Rajapakshe that an interpretation of a National Government from the Supreme Court is "completely out" must mean that such an interpretation would be made by Parliament alone. However, a fact that should not be overlooked is that while this may apply to Governments that function under Parliamentary systems, it does NOT apply in Presidential Systems that operate under provisions of Separation of Powers. This Separation of Powers is the bedrock of Presidential Systems under which Sri Lanka operates.
RELEVANCE of RULINGS by FORMER SPEAKERS
The precedents cited by Hon. (Dr.) Wjeyadasa Rajapakshe relate to Supreme Court interventions in respect of the impeachment of former Chief Justices. Indeed the Supreme Court does not have jurisdiction over issues relating to the conduct of members of the Judiciary. Such tasks are entirely within the domain of Parliament as stated in Article 107 (2) of the 1978 Constitution which states:
"Every such Judge (Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal from 107 (1)) shall hold office during good behavior, and shall not be removed except by an order of the President made after an address of Parliament…". In the absence of any ambiguity in Article 107 (2) there is no dispute that issues relating to the conduct of senior members of the Judiciary are solely within the purview of Parliament; a fact obvious to ordinary laymen. Under the circumstances, apart from the considerable body of reference material in the 25 page report, one might question whether the ruling really reaches the threshold of being a "historical land mark judgment".
A further matter of relevance is that the references cited by former Speakers are mostly British opinions that are relevant ONLY in a Parliamentary system of Government. Since under such systems Parliaments are supreme the opinions cited have relevance to Sri Lanka ONLY up to and until the introduction of the 1978 Constitution. The current Constitution is based on Separation of Powers. The COMMONWEALTH PRINCIPLES ON THE ACCOUNTABILITY OF AND THE RELATIONSHIP BETWEEN THE THREE BRANCHES OF GOVERNMENT Section (ii) Parliament and the Judiciary state: "Relations between parliament and the judiciary should be governed by respect for parliament’s primary responsibility for law making on the one hand and or the judiciary’s responsibility for the interpretation and application of the law on the other hand".
Based on the above principles, the functions of each branch of Government are governed by the provisions in the Constitution. Article 125 unequivocally states that the task of interpreting the Constitution is assigned to the Judiciary, thus: "The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to interpretation of the Constitution…".
Therefore the arguments advanced during the debate and the opinions cited to justify that an interpretation by the Supreme Court is "completely out", are flawed. On the other hand, it is abundantly clear that an interpretation is needed as to whether the current formation of the Government meets the Constitutional provisions of a "National Government". The only authority constitutionally authorized to do so is none other than the Supreme Court.
CURRENT FORMATION of the GOVERNMENT
The resolution presented to Parliament states that the "United National Party which obtained the highest number of seats in Parliament has formed a National Government". This is a self-proclaimed declaration. Therefore, there is a need to explore whether the current formation of the Government meets the test of a "National Government".
The current Government formation is made up of the UNP with its 106 members who were elected to Parliament together with a section of the UPFA that contested the General Election of August 17, 2015 and secured 95 Parliamentary seats. The rest of the UPFA are in the Joint Opposition. Consequently, the UPFA is divided between those that are with the so called National Government and those of the UPFA that are with the Joint Opposition.
The current formation of the Government is not a "Government of national unity" as referred to by Hon. (Dr.) Jayampathy Wickramaratne because it is not made up of the first and second political parties to secure the highest number of seats at the August 17th Election. Nor, is the current formation a traditional coalition where one or more political parties represented in Parliament come together in their entirety to form a majority Government.
Furthermore, it is not a National Government, whether such a Government is described as one made up of all or some of the political parties represented in Parliament. This is because a National Government is formed when the political party with the highest number of seats joins "with the other recognized political parties" to form a Government. In such a formation, whether one or more recognized political parties join to form a National Government is not the overriding issue. Instead, the more compelling issue is that the entirety of a recognized political party or parties commits to be part of the National Government. However, since the current Government is made up of the 106 members of the UNP together with ONLY a SECTION of a recognized political party, the UPFA, while the rest is with the Joint Opposition, the current formation is not a National Government. Therefore, the current formation is in violation of the constitutional provisions in Article 46 (4) and (5) of the Constitution.
The reason for a section of the UPFA being with the Government with the rest being in the Joint Opposition is because of purported "understandings" reached between the leaderships of the UNP and the UPFA. This has violated the Franchise of the voter who voted for the UPFA. Furthermore, because of the "understanding", the section of the UPFA identified as the Joint Opposition is unable to function as a legitimate Opposition in a Democracy. These developments are not the result of individual action of some members of Parliament joining a Government, but due to the administrative action of the leadership of the party to which these members belong. Therefore, the UPFA leadership is responsible for violating the Franchise and through it the Sovereignty of the electors who voted for the UPFA.
CONCLUSION
The Resolution under the Heading "DETERMINATION UNDER THE CONSTITUTION: NUMBER OF MINISTERS OF NATIONAL GOVERNMENT" states that the UNP which obtained the highest number of seats in Parliament at the August 17, 2015 General Election "has formed a National Government". This self-declaration entitles the Government to determine the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet Ministers and Deputy Minister beyond the limits set in Article 46 (1), which is a total of 70, with the approval of Parliament.
A challenge to the self-declaration is seen as a threat to the privileges of Parliament. The reason for such a perception is based on the notion that a determination made by Parliament cannot be challenged because Parliament is supreme. The evidence presented in support of the supremacy of Parliament during the debate on Sept. 3, 2015, was the ruling given by a former Speaker, Hon. Anura Bandaranaike. However, this ruling and nearly all citations that accompanied the ruling were based on the practices and precedents in the UK, which is the mother of Parliamentary systems of Government. Although this ruling is acclaimed as a landmark judgment, what it overlooked was that when the ruling was given Sri Lanka did not have a Parliamentary system of Government, but had a Presidential System that operates on Separation of Powers. Consequently, Parliament is but one of the 3 Branches of Government. And interpreting the Constitution is exclusively assigned constitutionally by Article 125 to the Supreme Court.
Therefore, in the name of Good Governance there is a compelling need to seek an interpretation from the Supreme Court as to whether the current formation of the Government is in fact a National Government, because the current Government is formed by the UNP that obtained the highest number of seats in Parliament together with ONLY a SECTION of a recognized political party that contested the August 2015 General Election while the rest is with the Joint Opposition. This division has caused the Franchise and therefore the Sovereignty of ALL the People who voted for the UPFA to be violated.
The opportunity to seek an interpretation from the Supreme Court is provided ONLY under provisions of Separation of Powers unlike when all power is vested in a single body, the Parliament, and the fortunes of the People are at the mercy of a Parliament alone. The exercise to determine whether the current Government is a National Government presents an opportunity that should not be missed by those currently engaged in Constitution making to decide which form of Government would best protect the interests and sovereignty of the Peoples of Sri Lanka.
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