Unconstitutionality of the ‘unity’ government


By Neville Ladduwahetty

The fallout from the local government elections has led to many questions that need to be addressed by the nation and Parliament. They relate to the fate of the so-called "unity government", a phrase that was coined to best describe the questionable formation of the present government. This has given rise to headlines in the print media, such as "Unity Government to Forge Ahead", "Unity Government Cannot Continue" – Non-renewal of MOU", and yet another that states "Speaker to Rule on National Government". However, although both terms, national government and unity government are often used interchangeably to describe the formation of the current government, only the term "national government" has constitutional legitimacy.

The term national government is used in Articles 46 (4) and 46 (5) of the 19th Amendment to the Constitution. The underlying advantage of using the provisions in both Articles was because of the outcome of the August 2015 election, wherein no political party secured an outright majority to form a government. Consequently, there was a compelling reason for one or more political parties to come to an understanding and form a government.

The obvious choice was to secure the support of the SLFP or the UPFA since both were headed by President Sirisena. The fact that it was only the UPFA that contested the election and the SLFP was only a constituent of the UPFA, did not appear to matter. Notwithstanding these impediments, the need to reward those of the SLFP who were prepared to support a UNP-led government was achieved by means of the provisions of Articles 46 (4) and 46 (5) whereby the number of Cabinet Ministers, non-Cabinet Ministers and Deputy Ministers could be determined by Parliament without being constrained by the limits set by Article 46 (1) (a) and (b)..

Article 46 (4) states:

"Notwithstanding anything contained in paragraph (1) of this Article, where the recognized political party or the independent group which obtains the highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, the number Ministers who are not Cabinet Ministers and the number of Deputy Ministers shall be determined by Parliament".

And Article 46 (5) states:

"For the purpose of paragraph (4), 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 or the independent groups".

This was the background for the Resolution presented to Parliament by the Prime Minister on September 3, 2015. The Resolution stated:

"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".

Two factors arise as a consequence of provisions in Articles 46 (4) and 46 (5) when taken together with the Resolution presented in Parliament.

1. The claim made in the Resolution that the United National Party "has formed a National Government" has to be established beyond doubt in terms of the constitution.

2. Whether the formation of the current government satisfies the provision in Article 46 (5), which is that a National Government is formed when the political party with the highest number of seats in Parliament "together with other recognized political parties" commits to form a government. This must mean that such a formation should be with the entirety of any recognized political party and not with a faction of it.

Factor One: It is evident from the ongoing debates in Parliament that no credible evidence has been tabled to establish the claim that a national government has been formed by the UNP which obtained the highest number of seats in Parliament. Instead, what are being presented at this point in time are only verbal assurances that written agreements between the parties concerned exist.

Whether these agreements are between the UNP and the SLFP, or between the UNP and the UPFA or both, is not known since no official documents have thus far been presented. Furthermore, in the absence of such credible evidence no one is aware of the period over which such agreements are valid. This lack of transparency reflects the degree of contempt the government has for its obligations to Parliament and to the people they were elected to represent.

Even if such agreements are tabled in Parliament there is no assurance that they would convince an objective observer that a national government is in conformity of the provisions of Article 46 (5). Therefore, it is imperative that these agreements be tabled in Parliament. Furthermore, if these agreements are to operate within a specified timeframe, it is critical that Parliament is made aware of such time constraints. Therefore, for these several reasons there is a compelling obligation for the government to table the agreements in Parliament in order to ascertain whether it has fulfilled its constitutional obligations.

Factor Two: According to Article 46 (5), a national government is formed only when the political party which obtains the highest number of seats, forms a government "together with other recognized political parties". Regardless of whether this is to be interpreted as involving ALL the other recognized political parties or not, it is very clear that it does not mean forming a government with only a faction of a "recognized political party" which in this instance it clearly is; i.e., only a minority faction of the SLFP/UPFA is with the government. To categorize the current arrangement as a National Government is to violate the Constitution as well as the franchise of the people. The current arrangement therefore should be treated as nothing but a private pact signed for no reason other than to form a government outside the sphere of the constitution.

When exercising his franchise, a voter first selects the political party of his choice. This reflects the pride of place given to a status of a political party. If, after an election a faction of the political party he/she voted for decides to go one way with the remainder going another, the sanctity of the voter’s franchise and the immutable principle of representative government is violated, because the voter is at a loss to know which faction would be responsible for fulfilling the mandate given to the party by the voters. More importantly, since franchise is an integral part of the sovereignty of the people as per Article 3 of the Constitution, the present government made up of the UNP and only a faction of the SLFP/UPFA is an assault on the sovereignty of the people.

Furthermore, the acceptance of this arrangement would set in place a precedent wherein it would be possible for any political party with the highest number of seats in Parliament to come to an "understanding", written or verbal, with a faction of a constituent party (in this case, the SLFP) of a recognized political party (the UPFA), and declare that it has formed a national government and thereby increase the number of Ministers in the Cabinet and non-Cabinet Ministers and Deputy Ministers without restraint.

This constitutionally illegal arrangement has existed for nearly three years, and what is being planned is to continue with the current arrangement with a redistribution of Cabinet portfolios in the absence of any attempts to challenge the status quo within Parliament or in the Courts of Law.

Most of the debate following the tabling of the Resolution focused on interpreting what was meant by "together with other recognized political parties". Did it mean ALL the other political parties represented in Parliament or could it have meant mean only those political parties that were inclined to be associated with a UNP-led government, with others deciding to stay out? It is this division that is the moot point in the legitimacy of the claim that the current government, qualifies to be recognised as a national government as intended by the framers of the 19th Amendment, thus enabling the collective number of Cabinet Ministers, non-Cabinet Ministers and Deputy Ministers to be increased beyond the limit of 70 set for a government, which does not meet the threshold of a National Government.

Notwithstanding this lapse, civil society did file a petition in the Supreme Court challenging the legitimacy of the basis for the claim that the UNP as the party with the largest number of seats in Parliament "has formed a National Government". The Court sadly denied the right to proceed on the grounds that the matter had been debated in Parliament and, therefore, was outside the jurisdiction of the Court, based on an outdated opinion in Erskine May relating to Parliamentary Privilege. It is now reported that the Speaker has consulted legal opinion and has declared that the current formation is, in fact, a national government.

It is apparent from these developments that the matter of interpreting the Constitution has been usurped by the Parliament and the Speaker. Article 125 of the Constitution states, "The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution…." The Supreme Court cannot abdicate its responsibility to interpret the Constitution when a petition was filed. The report that the Speaker’s ruling is what would prevail despite the fact that he is not constitutionally empowered, amounts to disturning. Collectively, this represents a total failure of the concept of separation of powers. Under the circumstances, Parliament should reject any attempt by the Speaker to rule on the constitutionality or otherwise of the current formation of the government, and demand that the matter be referred to the Supreme Court for interpretation as required by the constitution.

The claim that the current administration is a national government has gone unchallenged since September 2015. Allowing the claim to continue would be to set in place a precedent that is unconstitutional. Therefore, it is incumbent upon Parliament or some committed members of civil society to challenge its legitimacy.

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