10 December, 2018

Blog

“A Constitutional Dictator” – Thanks But No Thanks

By Thishya Weragoda

Thishya Weragoda

The Court of Appeal by its Interim Order issued on 3rd December 2018 stayed the de facto Government from functioning. The very next morning, on some radio show called the “talk of the town”, a man claiming to be an expert on everything, with a deep voice and a heavy accent – ostensibly trying to imitate some foreign journalist, claimed that the Country can be run by the President with the support of the Secretaries of the Ministries. The same was echoed by him, that evening too warranting response. 

The effect of the interim order issued by Court is to prevent the persons named as Respondents in the case from functioning as de facto ministers. Therefore, at present there is no de facto Cabinet of Ministers appointed on a staggered basis after 27th October 2018. 

The Hansard carries that on 14th November 2018 and on 16th November 2018,  two Votes of No Confidence were passed by the majority of the members of Parliament. That evidence contained in the Hansard is conclusive proof that the motion for a Vote of No Confidence was successfully passed. Article 48 (2) of the Constitution specifically provides inter alia that the Cabinet of Ministers stand dissolved if a vote of No confidence is passed against the Government. 

Therefore, there is no question that, as of 16th November 2016, the purported Cabinet of Ministers stood dissolved in terms of Article 48(2) of the Constitution. 

It is pertinent to note that Article 52(3) of the Constitution reads as follows: 

“The Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers under the provisions of the Constitution or upon a determination by the President under Article 43 or 44 which results in the Ministry ceasing to exist.”

Thus it is clear that, the Cabinet of Ministers stood dissolved with effect from at least 16th November 2018 and therefore, by operation of law, the Secretaries to Ministries ceased to hold such office. There is no room for interpretation and there is no ambiguity in this. 

The next pertinent question to ask is whether the His Excellency the President could repossess all executive power of the People without appointing a Prime Minister or a Cabinet of Ministers. It appears that the commentator who promoted the idea that His Excellency the President could run the country without appointing a Cabinet of Ministers was proposing just that. His argument may have held some water, under Article 44(2) of the Constitution prior to the 19th Amendment. 

The Pre 19th Amendment Constitution Article 44(2) provided as follows: 

The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1) of this Article or the provisions of paragraph (1) of Article 45 and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President. 

However, the 19th Amendment has taken away such power and His Excellency the President cannot any longer assign unto himself any subject or function nor can His Excellency the President keep in his charge any subject or function not assigned to any Minister. Therefore, the Constitution contemplated that His Excellency the President not holding on to any Ministerial Portfolios and allocating all subjects and functions to such Ministers so appointed. However, an exception was made in respect of the incumbent President where His Excellency Maithreepala Sirisena was permitted to hold on to the Ministries of Defense, Environment and Mahaweli. 

Section 51, 19th Amendment to the Constitution, reads as follows:

Notwithstanding anything to the contrary in the Constitution, the person holding office as President on the date of commencement of this Act, so long as he holds the Office of President may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment and determine the Ministries to be in his charge for that purpose and accordingly, any reference in any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President. 

Therefore, there is no question of His Excellency the President wielding the entire gamut of executive power of the People. There is only one word for such a system where one person holds all executive power, it is called a “Dictatorship”. Any attempt to justify such course of action ought to be denounced in the loudest possible terms. With Constitutional safeguards being disregarded at will by the incumbent President, the day we end up with a despotic dictator may not be too far away. Any encouragement towards that – especially on mass media is highly unacceptable. So, No dear Farez, we don’t need a dictator!  

*Thishya Weragoda – LL.B. (Colombo); LL.M. (Singapore)(Intellectual Property & Technology Law), ACMA(UK), CGMA, Attorney at Law

Print Friendly, PDF & Email

Latest comments

  • 0
    5

    Legally, the 19 th Ammdt. is defective, so many clauses are conflicting, still it requires approval at a Referendum to Transfer President’s Exec Power , Thru Art 3, ++ 4 , Its ambiguous, invalid, Distorts the basic Principles of Mgt. Adm. Splitting the Authority , isolating Responsibility + Accountability which is a serious mistake , done with greedy expecttations ,Its fraudulent, power snatching. ITS faulty, incompetent constitution drafting done by a one time examination cheater.!!!

    • 0
      0

      Sarath A,
      Jayampathi would have cheated in an exam, but how do we know in how many other matters you have cheated this world. However we know that Jaysmpsthi is s well known constitutional lawyer and is a President’s Counsel. Comparatively you are a low grade loser full of envy about Jayampathi’s achievements in the legal sphere. To have some consolation sit on a low bench and scream until you become little happy.

  • 2
    1

    I quote 48(2) here:

    (2) If Parliament rejects the Statement of Government Policy
    or the Appropriation Bill or passes a vote of no-confidence in the
    Government, the Cabinet of Ministers shall stand dissolved, and
    the President shall, unless he has in the exercise of his powers
    under Article 70, dissolved Parliament, appoint a Prime Minister,
    Ministers of the Cabinet of Ministers, Ministers who are not
    members of the Cabinet of Ministers and Deputy Ministers in
    terms of Articles 42, 43, 44 and 45.

    “unless he has in the exercise of his powers
    under Article 70, dissolved Parliament”

    The problem is that the President has issued an order to dissolve parliament and this order was stayed by the Supreme Court. Under this situation I would think the President would have to wait until the SC decision is given before making a decision.

    Also, there is another case before the SC on the legality of the PM and Cabinet, so I think the bottom line is we have to wait and see.

  • 12
    0

    A dictator who is also mentally unstable and full of hatred towards his opponents. Our country is indeed in a pathetic situation.

    • 1
      0

      Not only a deranged dictator, he is a confused and twister of his own actions. He said that there in no country in the world who had provided a helicopter to a president who lost an election to go to his home. Can he tell us of a country who suddenly dismissed a sitting PM , dissolved parliment against the rule of law, against country’s constitytion and democracy, appointed a PM through the back door, all of these without consulting parliament and law..

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 6
    0

    I too have observed, as have so many of my friends, the comment-maker on “The Talk of the Town” radio programme to be a self-important coward of the basest ilk. His hatred clearly shows through when he spews vitriolic words about people he dislikes.
    If he has even the vestiges of a backbone, I would like to see him attacking the misdeeds of the previous regime with the same degree of fervour as he does the Bond Scam.
    I certainly do not hold a brief for the Bond Scammers or any others for crimes against the people of the country. I have no hesitation in stating that they must be punished.
    But sauce for the goose is sauce for the gander.
    My grouse is that the biased press, as represented and led by persons like this, could influence the public to believe that the rogues of the past are better than those of the present.
    Creatures who were hiding under rocks pre-2015 have no moral right to have made seemingly ‘holier than thou’ pronouncements, particularly when they had the privilege to work in the free media that existed from 2015 and prior to 26th October, 2018.

  • 1
    0

    Thishya Weeragoda mentions the Court verdict on the MR Cabinet as a whole.
    Thanks for pointing out that the legality of the President taking on Ministries is questionable.
    He wind up with ~ “………., the day we end up with a despotic dictator may not be too far away”.
    .
    The RW-sack was a putsch. The ‘happenings’ that followed clearly shows that we have had a coup d’état.
    The clouds are gathering and before it breaks into a thunderstorm, we must seek shelter.
    Signs are ominous. We must act now to prevent a repeat putsch.

    • 1
      0

      Hi Pillai
      The comment I made to
      Lanka After The 26th Of October 2018 Colombo Telegraph

      By Suren Sumithrarachchi –

      “Let me have my “Day Dream”:
      The SC will uphold the FR petition by RW well wishers, on 7 Dec.
      MS will not appoint RW/UNF as the Government.(before or after 7 Dec)
      There shall be a budget or interim accounts/estimates for 3 months has to be submitted to Parliament and approved before 1 Jan 2019. This will be submitted by the “Government” which may be the President who may be the whole Cabinet of Minsters.
      The hostile Parliament rejects that bill . The Government ceases to function ( that is President ceases to function) without funds.
      Executive has to find a way for funds but he has exhausted all his avenues. Constitution Article 150 (3) or (4) is not applicable as Parliament is live (not dissolved)
      Now impeachment will be creeping /(knocking) the Presidents Door
      He should go, leaving the Parliament to use the constitutional powers to appoint the ‘Executive’.
      Parliament (Govt) submits Estimates or Budget, approve it and the Govt will function.
      Match over”

  • 0
    1

    Everyone seems to be a Legal beagle these days.
    Well as for me could everyone point the finger at Jayampathy .W that Chemistry paper saga man and his point men who assisted him to draft such a bad 19A.
    I do not want him or any of his henchmen touchinh drafting a Constitution or a part there of in future. Basically Jayampathy is a CHEAT. His drafting is crooked as his ways.

    All I am aware is that a (07) bench SC Judgement in 2002 only permitted Ranil a period of not more than 21/2 years of unhindered rule. In that instant too, Ranil tried to pull the wool over on CBK’s presidency.
    It may be interesting to note the role played by Abraham Sumanthiran then and on whose behalf?

    As for the BOND SCAM, it need to be attacked vigourously as Yahapalanaya was hearald to power against all norms and Ranil from the wilderness to PM post and within (40) was able to swindle the CB. For this is not what the voter placed their trust.? Ranil must be hounded. He dashed hopes and ridiculed the 6.2 m voters by his dastardly actions wearing a clean suit.. MY3 was then just a puppet clueless what was happening around him in his unaccustomed position.
    Was that action retribution for deceit? Only Almighty will know.

  • 0
    0

    Sarath A,
    Jayampathi would have cheated in an exam, but how do we know in how many other matters you have cheated this world. However we know that Jaysmpsthi is s well known constitutional lawyer and is a President’s Counsel. Comparatively you are a low grade loser full of envy about Jayampathi’s achievements in the legal sphere. To have some consolation sit on a low bench and scream until you become little happy.

    • 0
      0

      He got all these credibility thru Pissu Chandrika, Atraitor of this country ,All bum suckers of western Regime changers !!! I sincerely have no envy I people are Truly Sinhala National minded Let me tell u all humans are selfish But a sincere balance is the best, I am dead against changing our Unitary Status specifically with our country’s Location living among Extreme Tamil nadu divisional politics ( not having a country o f their own) , But minorities should be provided only with Social Justice Not territorial Integrity even Reginally. This is a Sinhala Nation

    • 0
      0

      By the way U I request U to read the real context of my comments on the created dubious outcome of 19 th Amendt (specically Extracting Pres. Authority ) which is illegal under this constitution. Pm has no exec power.

Leave A Comment

Comments should not exceed 300 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically shut off on articles after 10 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.

leave a comment