By Thishya Weragoda –

Thishya Weragoda

The Court of Appeal by its Interim Order issued on 3^rd 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 27^th October 2018. 

The Hansard carries that on 14^th November 2018 and on 16^th 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 16^th 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 16^th 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 19^th Amendment. 

The Pre 19^th 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 19^th 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, 19^th 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