By Jayadeva Uyangoda –
Prof. Jayadeva Uyangoda
The on-going political crisis following the local government election of February 10 raises an issue about the constitutional and political propriety of presidential action. It revolves around the reported activities of President Maithripala Sirisena aimed at finding an immediate replacement for Ranil Wickremesinghe as the Prime Minister. Let us consider the constitutional and political aspects of the issue separately.
First a brief account of the circumstances in which the issue has surfaced.
The context President Sirisena’s apparent determination to remove Wickremesinghe from the post of Prime Minister has political as well as personal dimensions. The extreme deterioration of political and personal relations between the two seems to have been precipitated by the finding of the Presidential Commission of inquiry into the central bank bond scam. Although the commission report did not implicate Wickremesinghe in the fraud, there has been perception in the country that he was morally responsible for the fraud and also for attempts at its cover up. President Sirisena used this issue as the key theme in his local government election campaign, promising the electorate that he would take some direct and drastic action to punish the corrupt. Although there are many individual politicians in the country tainted as being corrupt, President’s ire was primarily directed against Wickremesinghe and his UNP. It also appears that President Sirisena has decided to strike back, exercising his presidential powers at the first opportunity he got, after three years of being forced to function as a junior partner in the government and under the shadow of his own prime minister.
Initial reports indicated that President Sirisena went into action by searching for a new prime minister to replace Wickremesinghe immediately after the outcome of the local government election became known. He had first approached Anura Kumara Dissanayake, the JVP leader, and then Karu Jayasuriya, the Speaker of Parliament, who himself is the UNP’s deputy leader. When those attempts failed, Sirisena seems to have successfully persuaded Minister Nimal Siripala de Silva to find adequate parliamentary support to be elected or appointed as the new prime minister. De Silva is a member of the SLFP whose leader is President Sirisena. De Silva has reportedly been talking to Joint Opposition as well as individual UNP MPs.
This quite naturally created a great deal of political confusion and uncertainty in the country. A President of the same ruling coalition trying to sack his Prime Minister with the support of his bitter political opponents – the Joint Opposition, in this instance — is no ordinary political turn around. It is indeed unprecedented. That is why it was President’s reaction to the election outcome, rather than the election outcome itself, that has caused the current state of political turmoil in the country. It even overshadowed Mr. Mahinda Rajapaksa’s triumphalist reaction to the election outcome. Mr. Rajapaksa, along with his boisterous lieutenants, has been unusually subdued in his post-election political maneuvering.
Is President Sirisena’s active commitment to changing the Prime Minister after the defeat the local government election in accordance with the constitutional powers and responsibilities of the President under the 19th Amendment to the 1978 Constitution? Doesn’t it transgress the norms of constitutional propriety expected from the head of state at a time when the political balance of power in the country has acquired some lack of clarity, but not yet a crisis?
In order to be clear about the constitutional propriety, or the lack of it, of President Sirisena’s reported activism to appoint a new Prime Minister, let us look at the constitutional provisions regarding the presidential powers relating the office of the Prime Minister and circumstances under which a new Prime Minister is appointed by the President.
According to Article 41 (4), 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.” For the President to act under this clause, there should be a vacancy of the post of Prime Minister. A vacancy in the office of the Prime Minister occurs only under three circumstances (a) when the PM ceases to be an MP, (b) s/he resigns, and (c) when the government resigns. The resignation of the government, and the cabinet including the Prime Minister, can happen either when parliament rejects the Statement of Government Policy or the Appropriation Bill, or when a vote of no confidence on the government is passed in parliament.
Thus, under the 19th Amendment, Sri Lanka’s President cannot remove a Prime Minister from office to create a vacancy in order for him to be able to exercise the power given under Article 41 (4).
Can the President under the 19th Amendment who does not like for personal and/or political reasons actively initiate a course of action that would lead to the appointment of a new prime minister while the duly appointed Prime Minister is still holding office? The 19th Amendment is silent about a question like this, because framers of the 19th Amendment – President Sirisena being one of them- may not have anticipated the kind of extraordinary situation developed soon after the local government election results were out. It is also more than a coincidence that President Sirisena himself is instrumental in creating this extraordinary situation.
Was President trying to re-interpret the provisions on the Prime Minister in the 19th Amendment in accordance with the 18th Amendment? Of course, the 18th Amendment, and the 1978 Constitution in its original form, allowed the President to remove the Prime Minister at his discretion. But, the 19th Amendment has removed that discretionary power of the President. This is an important shift in the balance of relationship between offices the President and the Prime Minister based on a cardinal principle that guided the 19th Amendment that is, recasting the balance of power between the executive and parliament in favour of parliament. Under the 19th Amendment, the Prime Minister is not a creation, nor an agent, of the President, although he appoints him/her under Article 41 (4). Rather, the Prime Minister, and minsters of the Cabinet – the political executive – are representatives of the legislature.
It is in the light of this cardinal constitutional norm, which has rightly or wrongly guided the 19th amendment, that the issue of constitutional propriety of presidential action after February 11 with regard to the possible removal of the Prime Minister needs to be raised.
One can still argue that there was nothing unconstitutional in President Sirisena’s search for a replacement Prime Minister since he had formed the opinion that the incumbent individual was not fit to be the Prime Minister. Yet, the question that still poses itself as a concern is the following: does such action by the President pass the test of constitutional and political propriety? Didn’t President’s two parties too lose the local government election badly, worse than the Prime Minister’s party did? I will leave the constitutional question for the jurists to debate. As a non-lawyer, my view is that it is a situation that could have been delayed until the issue of the Prime Minister was settled in parliament without his direct intervention to preempt a specific course of action.
There are some lessons to be learnt from this experience. It is better for the President to exercise a little more caution and restrain in advancing his own political and policy agendas so that his actions will be in accordance with the letter and spirit of the constitution. Perceived violation of them by others should not be an excuse for him. Since the 19th Amendment’s particular hybridity may have left room for contingent grey areas in constitutional law and practice, similar to the one at hand at present, it is very crucial for all concerned to think twice before setting constitutional precedents. It is also prudent for the President at the moment to be clear in separating his political functions as the leader of two political parties and constitutional responsibilities as the head of state.
Sri Lankan citizens today, who have been failed by many other leaders, deserve to have least one leading state functionary to abide by political ethics, law, and the constitution.
Lankan No 1 / February 17, 2018
No politicians in our part of the world abides with the rule of the law at all …..
So ..all of them go above the constitution rules to gain the self interest.
/
nimal fernando / February 17, 2018
A sane piece.
–
Simply put, you know what you are talking about. …………………unlike Dayan and some others who try to pass biased ignorant crap as political analyses.
–
I hope Ranil steps down and let the people/country/party face the consequences ………..good or bad.
–
Ranil is grossly unsuited for Lankan-politics ………and he gets cuckolded by his own people all the time……..everyone he has brought into politics – or appointed to positions – has ended up shafting him or going over to the other side.
–
Sirisena is a born backstabber……..he shafted Mahinda …….. now Ranil ……..who next? Himself? …….That’s how these things end.
–
Like they say ………..give the people what they want and make them happy. Happiness’ is the key.
/
Ravin Daniel / February 17, 2018
Well said Nimal Fernando.Great comment.100% agree with you.
/
Douglas / February 17, 2018
Prof. Jayadeva Uyangoda: You say: “immediately after outcome of the Local Government election became known, he first approached Anura Kumara Dissanayake, the JVP Leader……….” This, I believe, could be a SACREDLY GUARDED HIDDEN “TRUTH” that was not divulged to the people either by the JVP or the Media. You being a “Professor” and a “Political Activist” could be in possession of ample evidence to prove that statement, and we, the “Dumb” as we are always led by your type of “Intellectuals” too tend to grab the late arrival of such “Truths”. However, being so mislead and confused with the type of news that invade us, I would appreciate it very much, if you would provide us with more details, such as “when”, “where” and “who” and “who” were present on that occasion of the purported “Approach” by the President. Hope, JVP “Leadership” pick up this NEWS and respond. Above all the MEDIA too must go into it seriously and let the people of this country know the TRUTH.
/
Native Vedda / February 17, 2018
Prof. Jayadeva Uyangoda
–
“Sri Lankan citizens today, who have been failed by many other leaders, deserve to have least one leading state functionary to abide by political ethics, law, and the constitution.”
–
With due respect I do not agree with your above wish. People don’t seem to make informed choices hence they deserve what they get.
/
Jim softy / February 17, 2018
Dumb Native Veddo: Are you still licking the back of thr bond thief . do you have a Studio in Medavawachchiya ?
/
Native Vedda / February 17, 2018
Jimsofty the Dimwit
–
” do you have a Studio in Medavawachchiya ?”
–
Are you planning to make video nastys? You playing the lead role, copulating with animals, acts of bestiality like your ancestors?
–
No you cannot use any of the studios in this island. It is not only illegal but also morally wrong.
Poor animals.
/
Douglas / February 17, 2018
Dear Readers: Please read through paragraph 4 of the article, beginning “Initial reports indicated…….” If this President approached Anura Kumara Dissanayake of JVP ,in an attempt to find a replacement for the incumbent PM, Mr. RW; that would be enough of evidence to IMPEACH him (the President) for INSANITY. What type of a “President” we have to approach a Party Leader with only 6 MPs and a dismal rejection at the Local Govt, election. This, I say, purely depending and trusting that “TRUTH” now divulged by our Dear Professor and Intellectual – Jayadeva Uyangoda. Coming back to the subject: “Plea For Sanity, In a Time Of Uncertainty”, that situation was created by the INSANITY of both the coalition partners of the Government. Both UNP and the SLFP/UPLF – the Governing Coalition, fell a “PREY” to the TRAP laid by the SLPP led by MR. Both parties did not comprehend the difference between the Central Government and the Local Government. Why the Central Government want to heed the slogan of “No Confidence” – the “TRAP”, initiated by the SLPP and got involved in a display of INSANITY of finding a NEW PM and a CHANGE in the Government STRUCTURE.? What the Central Government, could do and must do, is to REVIEW and REASSESS the strategies and set the course to WIN the confidence of the people . In that process, restructuring the framework, strategies, policies and of personnel could have been given priorities and carry on with the Governmental affairs of the country. Instead of doing that, the Governing parties got caught in the TRAP laid and started a DOG FIGHT. That is the INSANITY, I see. The sooner, the coalition partners wake up and start immediately to attend to the GOVERNING FUNCTIONS, the better for the country. That is what the people need and ask for.
/
Piyadasa Yalagala / February 17, 2018
People of voters have to learn this simple truth that time and again by their own political and anarchist experiences by political terrorist of JVP in 1971 April 5th and 1988/89/90 had been undermined whole order of Democracy. By that MS of President of Republic proposed for the post of Primer for Anura Dissanayake -JVP’s of Republic which all departure of norms of democracy principles and breaches of Parliamentary democracy in Sri lanka?
Did MS knows that JVP being to power of State is that turn into most Authoritative government in country since 1948?
This is way President seek solution for ongoing political crisis to resolved by Elected President of Island Republic?
By and large that bring democracy system into anarchist rule by President…MS? It is inevitable that a situation like Local Govt. result has clear verdict by people for has shown by Voters are not confuse.
Well President is senseless of political system of democracy? He himself (President ) vacillation on between democracy and anarchism?
But MS having illusion of have gone mad and deliberately got himself into mess simply cannot have knowledge of Republic Constitutional guidance.
What I suggest currently suitituation that things want to be move by suited to ongoing crisis to be dissolved Parliamentary by obtain majority consent seek fresh mandate from the People.
An Elected own represtaitaive is by handover to the People’s Sovereignty.
The power will be transferred represtaitaive system of Democracy of Parliament
One and Only path is General Elections solution of that UNP’s government policies means challenge democrats and democracy…..Sri Lanak by People of majority decision .
/
Jim softy / February 17, 2018
Prof Jayadeva Yuangoda: As per 19th Amendment Ranil may not be removed. But, why LAw enforcmenent can not arrest a man angaged in a humongous financial fraud. There are so many in the parliament including the pM to be removed and arrested. But that does tno happen and only the Two civilians. govt let go Arjun Mahdendran. Why all these ? RANIL ONLY CLARIFIED AND he did not go through a questioning. It is all frauds and fraud continuing…
/
Ajith / February 17, 2018
If the Prime Minister should go based on the election results, then the President should go before the Prime Minister because the President also part of this government. Based on 2015 parliamentary election UNP has the majority in parliament. In the local government election, SLFP came 4th or 5th place and President Sirisena has no mandate to be president. In terms of corruption he came to power with the promise of taking action against the corruption during the previous regime. It is a well known fact that there was large scale corruption during that regime and the commission appointed to investigated came with direct involvement of Mahinda, Gota & Basil. So, in terms of inaction against corruption Sirisena has more responsibility than Ranil.
/
K S Sivakumaran / February 17, 2018
Thank you Prof Uyangoda. Balanced thinking and clear exposition in terms of 19th amendment.
/
Jim softy / February 17, 2018
I heard about 200 in the parliament has shared the money..
/
Jim softy / February 17, 2018
At present, the LAwyer representing RANIL is Mahinda Rajapakse. HE has asked Ranil to not to respond for anything when Journalists ask.
/
James Chance / February 17, 2018
Excellent, thoughtful article.
/
Jim softy / February 17, 2018
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/
/
A. Sellathurai / February 18, 2018
We can be proud that Sri Lanka still has rare intellectuals to guide her with sane advice.
/
Mallaiyuran / February 18, 2018
It appears that the 19th amendment is only a quick and dirty fix for EP’s power over PM. Parliamentary election is there for people’s input. But the 1978 and 18A area allowing presidents to appoint anyone to the seat as long as he/she has confident in that person. This is really not separating the executive power and legislative power. That is what in CJ Shirani’s case happened; Executive power was able to subordinate the judiciary through the subordinated legislative function. The 19A is not fixing this wide hole. It, just like 18A which extended one man (Old King’s) terms, is simply protecting one man (Ranil’s) job. Earlier JR had protected him from anybody suing him. These one time or one man legislations become defunct or extinct once the persons elevated by them vacate the office. People are not able to elect representative to government them, but only go tricked into crown the self-helps.
Because there is an election for parliament, PM has to be appointed by that result, not on the will on EP. While even the appointment of Supreme Court justices is done with CC here EP is left alone with his own his choices for PM. People or their elected representatives are discarded. I am not sure of why in those circumstances then an EP has to respect a resolution of the parties to form a National Unity Government. He can just ignore that request and appoint anybody whom he thinks can do the job -, needed not to be the best in in the interest of the people. 19A seems to be failed to address this.
It is said in Mahabharata story that Krishna wishfully taught Abhimanyu the trick of how to break-enter into a circle formation of army, but did not teach how to exit out of it when danger becomes present. Abhimanyu was destroyed by Krishna thus. EP, who brought the PM, is stuck with that choice; no exit.
/
Mallaiyuran / February 18, 2018
The monster EP created, the PM, is knocking on his door. He has no way to re-bottle it. A PM has to come into existence with simple majority in parliament, because that is all what needed to pass legislations, the function of the parliament. If his mates lost confidence in him/her, his mates should be able to remove him. There should not be any need for 2/3 to remove the PM. PM is not the government. It could fair to argue that EP may need 2/3 to dismiss a government, because he is in another branch of the government. Here EP is seeking only change the PM. There should be difference between impeaching a PM and changing a PM. Impeaching PM can be done with the opposition supporting with or without 2/3. But there should be lighter procedure, by that, even the ruling party members alone should be able removing the PM, not reaching out for the EP or the opposition.
When reading Prof. Uyangoda’s explanation (if I get it), under 19A, only the government dismissal procedure is available even to bring a change in PM.
There are many MPs dismissed by people in election are back inside with 14A as nominated MPs. Even after UNP lost 30 elections under Ranil he is still there. The biggest loser in this election is New King. But he is aggressively seeking new Minister Posts instead of resigning from the ones he already has. In Lankawe constitution, there is no people can reject these rotten, undesirable elements. They persistently plague the governing system.
New King is very indecent backstabber, who now is in “Hopper Drama II”. As an honorable man who interacted with Ranil to form a National Unity Government, he has only two options; 1). Explicitly tell Ranil the intention and break the national Unity government or 2).get along with him – it is only a give and take.
/
Mallaiyuran / February 18, 2018
New King had asked Ranil to resign. Ranil refused. He needs to tell his party backbenchers that their other option is breaking up the NUG and release all the ministerial posts held. That is the only way they stop these unscrupulous, maneuvering to maximize their personal benefits and grossly ignoring or discarding the people’s service of their governmental function.
As I said in my other comment, (https://www.colombotelegraph.com/index.php/ranil-takes-refuge-in-constitution-while-sirisena-camp-struggles-to-oust-him/comment-page-1/#comment-2162791) in addition to the 19A, the new hybrid election system seems to more dangerous to the governmental function that any other mistakes committed in the past Soulbury Constitutional time. On the line of constitutional amendments, anything coming out of Ranil’s head is only pus & discharge, no productive thoughts.
UNP has lost four ministerial level persons by resignation in 2 1/2 years. Mangala and Sagala demotions are additions for failure to perform in the ministries. That was the least, but many should have gone by now. In the light of election loss, reshuffle is being attempted to cover up failures and avoid the whole team resignation.
This election is lesion for majority community; the Tamils bashing in election campaign cannot be kept ever for election victory. The reasons suggested to loss are 1) Criminals not punished 2) people’s welfare not taken care. Here the impunity offered to 200-300 Sinhala Muslim parliamentarians and higher officials did not go balanced in the minds Sinhala Buddhists majority by prosecuting two CB Tamils. But the perceived anti-Tamil stand of Chitanta government is higher than prosecuting two accidently got caught Tamils. Here it seems the only would be way out for Yahapalanaya was punishing the criminals, instead of one single action of Tamil bashing. But, no way can Yahapalanaya prosecute the Sinhala criminals. That hurdle is a serious drag for economy. Yahapalanaya future is very bleak irrelevant of those two leader struggling to secure presidency for them in the next election. They Both will be out in that.
/
Piyadasa Yalagala / February 18, 2018
Needless to say that 19th Amended Republic Constitutions of the pioneer of that UNP leadership of has done irrapala damages to Sovereignty of People by RW of UNPs..
The “UNP led constitutional amends” shifting into uncharted path of “Democracy ” by USA, UK and Indian of foreign influences. They created new Puppet regime in center of Colombo that “Good governances and Rule of Law ” by UNP led coalition of 2015 January 9th MS, RW and CBK by without any political options to Democracy of Republic keep on limbo our whole nation?
This is/was well organized that full blown unending political crisis has ,today even most foolish of those UNP leadership of MS, RW and CBK fools can see that reality will not wait and UNP move deepen Economic crisis by dislocation whole nation that is in a hurry.
Since 2015 January 9th of so-called “Rainbow Revolution day by day facts proven that beyond doubt and all negative development Politically, Economically and Socially has revealed that whole economy dislocations will be probably not wait until Local govt. Elections landslide victory by MR Led alliance in 11 February 2018 meets and which crashed will has come earlier.
Ours Nation catastrophe will not standstill, it is advancing terrific SPEED. In my view that is it man-made created catastrophe by Local agent of UNP– Ranil Wicks MS and CBK —- by join hand with JVP, MC and TNA by joint New mode operation of USA and Indian hegemonies to surrender nation sovereignty as well as destroy the backbone of Democracy and Development in Sri lanka.
This ongoing crisis having new hidden agenda, it is high time all citizens REALISED that UNP and SLFP JVP and TNA as political parties will have to ANSWER TO THE PEOPLE FOR CRISIS APPORCHING FOR THE man made political-economic -social CATASTROPHE? …….Sri lanka….?
/
CITIZEN / February 19, 2018
The Author of the above article enlightens the reader of many important legal provisions. In the light of these explanations we are at a loss to understand the indecent urge of the President to remove the Prime Minister on the excuse he has “forfeited the confidence of the people”. First thing is, this is not the Parliamentary elections to take the results seriously against any particular Party in Government. This could be only taken as a comment of the people on the performance of the Govt. particularly on the promises made (mainly action against the corrupt and criminals etc.). However, granting this “comment” would be taken seriously, we wonder why the eyes of the President are shut on the performance of the other 2 Parties (UPFA & SLFP) which are partners of the Government and the Head of these 2 Parties is the President himself! As the statistics available show the UNP is the 2nd largest Party winning many PSs and some UCs & MCs while UPFA & SLFP together have suffered a HUMILIATING DEFEAT coming 3rd & 4th, even below JVP and what’s more in some places with NOT A SINGLE MEMBER ELECTED! So, in terms of morality, ethics & propriety, should it not be the President who should honourably step down as a gentleman???
Further, latest we know is that he has EMBRACED the “corrupt, rogues & criminals …” against whom he waxed eloquent on taking drastic action and jail them for life and even disenfranchise them! Does not this VOLTE-FACE of the President smack of something shocking emanating from outside influence with vested interest? After all, Sri Lanka is a “MIRACLE OF ASIA”, where miracles in the political arena are a common thing!
/