By Lal Wijenayake –
Though the possibility of the United People’s Freedom Alliance (UPFA) wining a majority of seats at the forthcoming Parliamentary election is remote, the question as to whether Mahinda Rajapaksa can become the PM in such a situation is being debated.
Article 42(4) of the constitution as amended by the 19th amendment clearly sets out that 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.
Therefore it is clear that the power of appointing the Prime Minister is a discretionary power vested in the President. It depends on the opinion of the President.
Under Public Law a public authority is vested with discretionary power with the trust that the power so vested will only be used for the purpose for which the discretionary power is vested in the public authority and that the power will not be used for any collateral purpose.
But it is argued that the President is bound by the British Parliamentary conventions in the appointment of a Prime Minister as it was from 1947 to 1977, till the Presidential system was introduced. British Parliamentary convention will not apply, as the system of government we had before 1977 was a Parliamentary system of government based on the British model. Hence, our Governor Generals Lord Soulbury, Sir Oliver Goonetilleke and William Gopallawa were bound to follow British convention in appointing a Prime Minister.
What we have under our constitution today, even after the passing of the 19th amendment is a Presidential system of government. This would be called a ‘Hybrid’ system which has features of a Presidential system of government as well as a Parliamentary system of government. Unlike in the British Parliamentary system of government in our Presidential system of government the President is not just a constitutional figure head.
The President under Article 30(1) of the constitution is the Head of State, the Head of the Executive and the government and the commander in Chief of the Armed Forces.
Further, under Article 42(3) the President is a member of the Cabinet of Ministers and is the Head of the Cabinet of Ministers.
Therefore it is seen that the discretion vested in the President under our constitution in the appointment of a Prime Minister is almost absolute when read with Article 31(1), which confers immunity to the President for acts done or omitted to be done by the President, either in his official or personal capacity. The Presidential immunity even after it was diluted by the 19th Amendment is wide enough to cover official acts of the President performed under the constitution.
Therefore, the appointment of a Prime Minister depends on the opinion of the President. It is clear from the statement made by the President that he has already formed the opinion that Mahinda Rajapaksa is not fit to be the Prime Minister and that under no circumstance will he appoint Mahinda Rajapaksa as Prime Minister. Further, the President’ stand is strengthened by the fact that he is the Leader and President of the party. Therefore even if the UPFA wins a majority of seats, the President as the Leader of the UPFA has a say in the selection of the Prime Minister.
It is a jurisprudential requirement that when a public authority forms an opinion which may not be subject to challenge in a Court of Law, still the public authority should have valid reasons to form that opinion.
In the case of the appointment of Mahinda Rajapaksa, the President may have formed the opinion for the reason that Mahinda Rajapaksa and his family, his close relations and associates are subject to serious allegations of corruption, misuse of power and even commission of criminal acts.
It is common knowledge that such serious allegations are being investigated by the Bribery or Corruption Commission, Financial Criminal Investigation Division (FCID) and the Presidential Commission on abuse of power during his regime. Therefore, one may argue whether such a person is fit to be appointed as the Prime Minister before those allegations are investigated. Mahinda Rajapaksa has himself admitted in public that during his regime he did not act against those who were with him, who he knew were corrupt and involve in criminal activities.
Therefore, these reasons may have made the President form the opinion regarding the appointment of Mahinda Rajapaksa as Prime Minister.