By Lal Wijenayake –
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.
mike / July 30, 2015
Can a unlawful former president become Prime Minister more so when he is accused of murder, rape, robbery and the list goes on and on???
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sarojini / July 30, 2015
If the. Chances of the. UPFA winning an overall majority is that remote ,why bother even to discuss this topic. ??
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Estate Labourer / July 30, 2015
Even if improbable, discussing hypothetical scenarios can be an intellectually stimulating exercise. Something that the majority of Sri Lankans need very badly.
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Ram / July 30, 2015
To people who have nothing better to do.
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Ajith / July 30, 2015
The answer is a big “NO”. Former President Mahinda Rajapakse was lawfully, democratically and morally ousted by majority of Srilankan people despite his illegal, immoral and violent methods of governance. If he was a true gentleman he should have honestly gave that opportunity to lead his party to somebody who can lead the party and the nation. If you can’t find a talented , confident leader out of the 58 million voters who supported SLFP, there is something wrong within the party, members and policy. If Mahinda dies tomorrow what is the future for SLFP? Who is going to save the country? SLFP members and supporters need to think about party, not an individual who will not prepared to accept other than violent leadership.
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Derby / July 30, 2015
Sirisena has a personal vendetta against MR. More than anything else, Sirisena is scared of MR, what MR will do to him if he becomes the PM. Sirisena has not behaved, acted or spoken rationally during the last 6 months. He was put up by the West as a puppet who will abide by the UNP and Ranil W. The West wanted a regime change – a regime that will be nod it’s head in a ‘Yes’ to the West. It appears now that the U.S.S wants to have a military base in Sri Lanka – this is one of their pivot to Asia goals. Ranil and Sirisena will be more than amenable to such an idea. Sirisena is a puppet and along with Ranil W, a traitor to Sri Lanka!
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Point of View / July 30, 2015
Wow ! Who is your doctor ? See a proper doctor for the ailment without wasting time with Dayan !
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Senerath Kalupahana / July 30, 2015
Arnt we scared of Perci and his begging family.
I guess no peace loving people would like to see Perci anywhere
near Diyawannawa.
17th Aug 2015 will be a historic day for the country.
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Sapumal / July 30, 2015
Derby, are you Dayan or taking lessons from Dayan? Nova days Dayan is busy with Wimal Weerawansa and Nalin Silva. I dont know about Malinda. But I am quiet sure you are trying to touch moon from Madamulana.This may be applicable to Tissa Witharana and his gang.
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Amarasiri / July 30, 2015
Lal Wijenayake
RE:Can Mahinda Rajapaksa Become The Prime Minister?
The question to ask is what percentages of Sri Lakans are Modayas, Fools and Mootals, among the Sinhala Buddhists, Sinhala Christians, Tamil Hindus, Tamil Christens, Muslims, Malays and Burghers, and the answer is there.
From the Jan 8 election, it was 58/(58+63) = 58/ 121= 45%
Let us hope that this percentage goes down to 20 to 25%. Remember, evolution of Modayas, Mootals and Fools take time..
In the Meantime, sing
MaRa MaRa Chatu MaRa Amana MaRa
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Vanguard / July 30, 2015
You have a point, in that there is nothing in the Human Rights charter or Sri Lankan Constitution preventing ‘modayas’ from voting.
Maybe the new Constitution?
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Afzal / July 30, 2015
Instead should we not ask the question do we need MARA as Prime Minister ? then I agree with Amare SL has too many Mootals/Fools and Modayo who will not ask that question.
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Kettikaran / July 30, 2015
The outcome of most General Elections in recent decades have been by cheating the people. Sri Lanka is not along here in so far as the Sub Continent is concerned. The Sri Lankan voter seems to have a tremendous
capacity for being taken for a serial sucker, to use American slang.
Rice from the Moon, eta ata (8 grains) Mahinda Chintana – all instruments designed and calculated to cheat the voter – are now legion. We might pat ourselves on the back we are a literate electorate purely because over 90% of voters can read and write. But the truth is even those who have passed out in what is called our Universities are generally found to be, educationally, below average – with due recognition to a brilliant few from both sexes. Let us remember in the last Parliament – err… our Legislature – a large number of the MPs did not have even the lowly GCE (AL) qualifications.
At least one MP had to be referred for phsychiatric certification. It may not be an exaggeration to state almost all of the MPs in Parliament cannot read fully and understand even a simple Bill. Even some of our recent Ministers given in charge of the laws/constitution were poor in their English Language.
Who wins will be decided by Sinhala speaking Party is able to poison the easily-fooled prejudices of the average Sinhala man in the rural areas. The Sinhala voter in the urban areas is a little more savvy. Now that most rural Sinhalese know the LTTE is no more those conspiring brains will discover something else to fool the Sinhala mind. Blaming the LTTE is no more a good marketing tactic. Already, steps are on to raise the Federal question as one of the main issues. The Sinhala voter may or may not know the TNA, speaking for the Tamil people, are now publicly committed to an undivided country. They now ask for internal rule in the Tamil-speaking areas. I believe they are entitled to this after half a century. Leading Lankan politicians, including the Rajapakses, are already talking to the Tamil diaspora to work out ways of reducing differences so that the Diaspora issue may not be that toxic. But the extremists on the Sinhala side will, predictably, give Tamil-related issues an anti-patriotic flavour. Already, the delusionary “return of the Tiger” fear is being planed in Sinhala minds.
Little does the Sinhala voter realise the country is in a politico-economic cliff edge. The many self-inflicted wounds in the Lankan body politic can result in a haemorrhage that can be fatal.
By all accounts August 17, 2015 will be historic to a country that has several times been consigned to the ICU – politically and economically.
Who becomes the PM will have to be necessarily a low key issue. Will the patient overcome the next seizure. That, to quote the Bard, is the Question. Or will the Buddhist Sinhala extreme – lead by Rajapakse and his cohorts, set the country in flames again?
Kettikaran
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Ponkoh Sivakumaran / July 30, 2015
This is dangerous nonsense.It makes the President a dictator. There is no absolute power in the President. He must call upon the person who commands the most number of votes to be Prime Minister. We may not like MR to be the man. That is an entirely different matter.
Presidential immunity is an entirely different matter. You cannot read into it what it was not intended to serve.
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John / July 30, 2015
Power hungry, corrupt beyond imagination MR [Edited out] should never be allowed to become PM at any cost. My3 will do the needful , if not he knows he would be 6 feet under the earth.
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H / July 30, 2015
Thank you :) Finally, someone breaking the constitution down and making it blatantly clear that it is clearly the Presidents “opinion” that matters. There are so many articles floating around where they wrestle with the thought of Mahinda being appointed as the PM when the constitution clearly entrusts that decision solely to the presidents opinion.
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dcn / July 30, 2015
This question may not arise as UNP would sweep the poll on 17th August and Ranil as P.M.
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Sylvia Haik / July 30, 2015
The main question is do we retain our senses or go back to the laws of the jungle. MR might have already drawn up the list of who he wants to disappear, abduct or murder should he becomes PM, God forbid.
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HoRa / July 30, 2015
Good try by a very “objective” and “impartial” commentator.
“A” member of Parliament, who in the President’s opinion is likely to command the confidence?
“A” member of Parliament, who in the President’s opinion is “most” likely to command the confidence?
“the” Member of Parliament, who in the President’s opinion is “most” likely to command the confidence of Parliament.
The problem in Mr Wijenayake’s analysis is these two words- “the” and “most”. It matters not if the President considers Mr. Rajapakse to be unsuitable. The question is not about the President’s opinion of suitability. The question is of his opinion about his likelihood of commanding the confidence of the house.
If The President has already publicly acknowledged that 99% of UPFA wants MR to be PM and if UPFA wins a majority of seats, how then could he form a different opinion that a different MP is “the” “most” likely to command the confidence of parliament.
A victory of the UPFA on 18 August will also mean an overturn of the January 8 Mandate, going by the Same logic of the January 8 Victors that their MY3 victory was an overturn of the Mandate of the Parliament elected in 2010
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CHANAKYAN / July 30, 2015
With clarity and objectivity a presentation is made to dash M R’s fond hopes.
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Don Quixote / July 30, 2015
How on earth does it take so many words to say NO ?
What’s worse is that you don’t even say NO !
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Greg / July 30, 2015
In the event SLFP/UPFA majority win, it is clear that the sole reason for the win in present political situation, is MR’s efforts. No other senior SLFP MP would seek the position of PM. All SLFPers will rally around MR. All MP will probably sign a document of allegiance to MR and present it to the President.
In the event of SLFP’s win that will happen for sure.
If that happens the President has no other alternative.
MR will be appointed as PM !
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jay gunasekara / July 30, 2015
Mahinda the criminal village thug should be prosecuted together with his relatives to the full extent of the law There is no criminal politician that I know that is serving time behind bars.This is a national shame that the compliant judiciary is a mockery to justice.
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vichara / July 30, 2015
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.
The President is not expected to consider any other aspect of such as the character of the person in making that opinion.
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Saman Wijesiri / July 30, 2015
Common sense says that you are correct, Mr. Wijenayake. You have analysed it from an academic angle. But let us look at a possible scenario from the practical angle. The President is expected to appoint as PM, an MP who, he thinks, commands the confidence of the majority in Parliament,not the leader of the party that commands the majority in Parliament. Even if the UPFA wins a majority of seats, the faction loyal to Maithri would want someone other than Mahinda as the PM. This faction is sure to receive the ready support of the UNFGG, TNA and the JVP MPs who together will certainly form the majority in Parliament.However, it must be said that MS is now an unknown quantity. He certainly took several significant steps towards restoring good governance, democracy and national unity and also setting right a few glaring injustices. But one may find it difficult to understand the rationale for his behaviour particularly following the dissolution of Parliament. He lost his credibility during his bid to retain his hold on the SLFP and the UPFA. He forgot that he got no mandate to protect the UPFA and its corrupt elements. To give the devil his due, MS certainly did usher in a change for the better that the people looked forwards to for years!
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NIRMALA n / July 30, 2015
Lal Wijenayake
‘Can Mahinda Rajapaksa Become The Prime Minister?’
Yes, he must and he will.
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CHANAKYA / July 30, 2015
The writer, how can you say that UPFA will not win. Anything can happen Sir!
You are like Rip Van Winkle. After Mr SWRD B’s assasination, the man on line was our Charles Percivel de Silva , minister, CCS retd, the real father of Minneriya, not D.S.Senanayake, who was in the sick list that time, and abroad. Sir Oliver Goonetilleke the Great did not wait for him, but invited Minister Dahanayake to form a caretaker Government. Why did not he wait for sake of democracy. He worshipped the caste system.The pitiful part of it was that after the 1962 coup he was not trusted and he was replaced by H.E W.Gopallawa, a descendent of an illegitimate issue called Dullewa of Sri Wickrame Rajasinghe…so they all have Dravidian Nayak blood….Sir Oliver’s statue stands big, near Kanatta Buddhist Section, at the itersection of old, Castle St and Old Buller’s Rd intersection. What for, due to Foreign Exchange frauds, he could not enter his country of birth; his country where he was the G.G. and citizen No.1. What he grabbed as the Civil Defense Commissioner during World War II at now Goonetilleke Gardens and near Orugodawatte-Basline Rd rail road intersection had been questionable. Besides what type of of human being was he when he told Dr N.M. Perera, ” It was not possible for me to handover the country to a “Haliya” (caste), so I called Dahanaike to form the caretaker Government.
Dear writer, do not predict things. Everything is in the hands of the people. With the past experience the whole country knows that , MR is the one to keep the country stable with his 2 brothers; with us watching and not allowing his immature relatives and 3 sons to do immature things of their own accord MR can do wonders.
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Sapumal / July 30, 2015
Everything acceptable except MRcan do wanders part. Yes , he did many wanders including Dubai marriott, Hambanthota port without ships, mattala Air port without planes, making billionairs in one giht like Dilith and Dhammika Perera, bringing Lamboginis without paying Taxes for his sons while many poor people stay in hungry, killing people with no fear for law and order in the rest of te world…. so many more…… We know what by the sound.
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Jayasingha / July 30, 2015
If the UPFA is not going to win a majority of parliamentary seats at the next elections there is no necessity to discuss a non issue of a PM from that party. We have to discuss then the position of the leader of the opposition from the UPFA. The fact is that there is high possibility of the UPFA will win with a majority. Hence the PM issue is coming to the fore with the president’s speech which itself admits this possibility. So lets wait and see how the president will act after the victory of the UPFA and the consequences that would follow since he has already made his position clear. I think it is best to discuss this issue happening and the possible post election scenario in this context.
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MirakRajBanda / July 30, 2015
How can he wear a ‘Rolex’ with his salary unless if it’s a Chinese fake or from Chinese bribe? And how shamelessly he displays his ill-gotten wealth to the public?
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EDWIN RODRIGO / July 30, 2015
Sigh!!! It is a big relief to know that this man is not going to be PM or occupy any other significant poition of power. He had his chance to leave his legacy as a great leader of Lanka but blew his chance. Even the claims of defeating terrorism rings hollow due to what he did to SF.
All excuses, loopholes should be used to keep this menace out.
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dcn / July 30, 2015
This question will not arise as UNP alliance will win the elections on 17th August with a majority where some of the MPs from UPFA will join the government to make a 2/3rd majority in parliament with Rani as PM.
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Wera / July 30, 2015
Rajapakshe hopes to not only become PM but also to bump off the sitting president M.S. and become president himself. For a serial murderer who has been allowed to go scot free all these years this is quite achievable. The people of the Kurunegala area gave the UPFA the biggest lift in the last presidential election. Therefore even though he could have contested in Hambanthota and won easily he decided to boost the UPFA numbers entering parliament from Kurunegala by contesting from there. The only changes to the constitution he will enact will be ones that benefit himself. All his election promises are only worth to be used as T.P. There are many legal obstacles in his path but they don’t matter. His election platform proudly declares him as the next PM. His sycophants all agree not giving a second thought to any legal or constitutional barriers that may exist. This is how thugs think and behave. Our Moronic voters especially the ones from Kurunegala who think this scoundrel and his minions are worthy of their vote must be retarded or high on drugs. It is up to every right thinking citizen to talk to as many of these morons as possible and convince them not to destroy this entire nation. If you don’t like whats on offer other than the MR then stay at home don’t vote that will be a better service.
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MirakRajBanda / July 30, 2015
and he seems to be hiding his ‘Magic, fairy-tale, superpower Talisman’ made from stolen LTTE gold!!!!
Will that stimulate MaRa’s ‘Akuressa Adreline’ ?? :)
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RAVI.P / July 30, 2015
[Edited out] Please avoid typing all capitalized comments – CT
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Rajash / July 30, 2015
My3 said that he gave nomination to Mahinda sue to pressure from inside the party.
So forget constituion and bla bla bla.
My3 will make Mahinda PM under pressure
The question is then can Mahinda turn the tables and sack the president
This ountry seesm to be alwyas doomed
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anonymous / July 30, 2015
Are you from outer space or completely insane you moron?. No and No, full stop. He has to become an MP first and he will not get there even.
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Afzal / July 30, 2015
Amare,
I agree, lets wait and see how many % of lankans are Baiyo. (I am bit reluctant to use the word Muttal/Modya) We will have a very clear picture by 19th Aug.
Not only that by district level we will know the percentage, we will also get to know which MARA member has the highest number of Bai support. Elections are funny things.
=======
After the election President will clean up the SLFP. MARA will not be even given a ministerial post. (I am having faith on Kurunagala Baiyo to elect MARA to parliament. If I am proven wrong then we can say Baiyo has been reformed. But I doubt it very much). MARA will get humiliated, every time he opens his mouth to talk barrage of accusations will fall on him. Eventually he will retire to Madamulana, unreformed Baiyo will visit him once in a way.
Chee Chee baby, Choo Choo baby, Namal baby, Siriliya nona, Mihin CEO, Air Lanka CEO, Divinuguma Hora, White Van Gura, Ehanol lokko, Kudu MP, Greek Bond Cabral….. all will face the music within 1-2 years of Good governance. By the end of 5th year we will have a cleansed country with a new political culture.
Sri Lanka will be a different country. BJP will fade away.
Note:
I used a crystal ball bought from Maharagama market for these predictions.
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azizur / July 30, 2015
Raza paksha is a patriotic leader. He is not defeated to Srisina. He defeated to indian RAW. India is making conspiracy into Sri lanka just like Bangladesh. Indian RAW capture full Bangladesh through a puppet Hasina Govt. She is a RAW agent. In Sri lanka india is searching like Hasina of Bangladesh. So be aware from india. India is trying to make victory of india minded candidate. So needs to be aware.
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Native Vedda / July 31, 2015
azizur
Hindia always considered Sri Lanka as its Sinhala state of Hindia. What seems to be the problem?
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K.A Sumanasekera / July 30, 2015
Batalanda Ranil and his Christian faction is going to do a landslide according to the NGO Dr Paikiosothy.
In fact he has given his private Poll results to the Indian Hindu.
Wonder how much he got paid for the Poll..
Now this writer seems to be confirming Paikiosothy’s findings.
So why worry about Rajapaksa.coming … .
But by looking at the recent behaviour of the UNP young guns like Senasinghe and Kariyawasam, they are in panic mode.
Senasinghe has even gone in to a Sarong mode to impress the Elite in Colombo.
He abused the lady host of a recentt TV show , because the host didn’t allow him to spray his bull crap.
His body language fit the sarong to a tee, with the finger pointing at the host..
Only thing missing was the other hand lifting the Sarong .
The host in fact implied that this Senasinghe is not Yahapalan stuff ,and urged the audience to think wisely before they cast their votes in Colombo.
And Kariyawasam says the SLFP wants to bump him off because he is going to score the highest ever vote in Kegallae.
Lucky he didn’t say that on stage in front of an audience because the audience would have said HeHeHeHeeeeee …..
BTW, Did Paikiosothy explain that over size Invoice for the piss up with his mates with up market tucker ?..
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paul / July 30, 2015
MR would be just as dangerous as Leader of the Opposition. Anybody thinking about this?
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Sylvia Haik / July 31, 2015
The people of Kurunagala are far more astute than you give them credit for. I will be surprised if MaRa even comes close to being elected. This will be the final nail in the coffin of his comeback aspirations. Please retire to the US and enjoy your ill-gotten gains with your family but leave us alone to regain our sanity and international respect.
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