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.
Raj / July 30, 2015
Can MR become PM? In my opinion, it is a possibility.
In most countries, at least in the developed world, anybody with criminal proceedings against him or her, cannot even get a job & those employed are sent on ‘Gardening leave’ until cleared by the courts. It is clearly different in SL. Although MR & his senior Ministers are accused of mass corruption, to my knowledge, no charges have been brought against them. Obviously they are clever enough not to leave a paper trail to incriminate them or those entrusted to deliver justice are slow to act, maybe because they think that if MR returns to power, their loyalty will be rewarded many times over. MR has a large vote base, not only among the grateful rural masses who are willing to ignore the corruption charges but even among the elite society who have benefitted from his regime. Ranil has unfortunately been unable to capitalize on the situation because of his apparent letharginess in bringing culprits of the last regime to book, as well as, for his own cronyism & some of his party members’ dubious records. So it may very well be a close fight but if the UPFA gets a majority, MS, who has already demonstrated weakness as a forthright leader, will be powerless with a strong MR backing in parliament, despite being party leader & President of the country. Even so, horse trading & blackmail is common in SL politics & who knows what skeletons MS has in his cupboard?
So MR’s return is realistic & there will be many politicians & businessman who will sighing with relief if this happens. All allegations of corruption & abuse of power will be swept under the carpet & the average man on the street will be happy with the thought that the country & its Buddhist population is safe under MR. Things will be back to normal once again with mega ‘development’ projects funded by the Chinese at commercial rates & a privileged class of people will be getting richer while SL will be closer to a failed state like Zimbabwe.
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Citizen Perera / August 6, 2015
Dear Mr LW.
Intending no offence to you, though you split hairs and try to analyse, anybody could see that its all your wishful thinking; you even give President MS food for thought. There is a Freudian slip in that you have a doubt that MR will become the next legitimate P.M.Otherwise, there was no reason for you to write the article.
Whether its the Westminister model or another, an interpretation of Dicey or the American, Norwegian or the French model, it is the JANAWARAMA that is stronger than any other in a Democratic country. President JRJ changed the constitution for 2 reasons.1. In his own words “Ira-hanthe tiyanathura UNP paraddanne nathiwa balaye inna…” 2. To exercise dictatorial powers as he did. Can you remember how he got resignation letters from his MPs, to sack them when necessary? Saw how he treated Mr Dudley Senanayake just before latter’s death and got Rukman Senanayake (now a small man in Kegalle)out of power?
MRS Sirimavo Bandaranaike used to always say after defeats, “Mahajanaya Hari. Api Hadenna oney adupadu hadagena.” So, President Sirisena has to know that JANAMATHAYA is above him, and he is there also because of the same JANAMATHAYA. He will be guilty, according to the Historians, of the crime of running a country ” under the term Yahapalanaya” for 8 months+ with an illegally appointed PM and a Cabinet against the provisions of a Peoples’ Constitution.A country cannot be run like a group running a village in a “PANCHAYATH SYSTEM.” The JANAWARAMA with JANAMATHAYA is a COLOSSUS coming from the entire country, as you will agree.
Thank you.
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Ansar / July 30, 2015
Chankya, “MR CAN DO WONDERS”
Yes, he did lot of wonders.
1. Eliminated Lasantha in broad day light in HSZ.
2. Incarcerated our valiant General who won the war for us.
3. Bumped off Bharatha Lakshman, like in Chicago.
4. Sreepathi Sooriarachi died like in Mafia Movies, after his speech in parliament about funding LTTE by MARA.
5. Wasim Thajudeen was murdered after being tortured in the most inhumane manner
6. Protesters demanding clean drinking water was killed like in a war zone.
7. FTZ employee was killed for demanding security for their EPF/ETF fund.
8. Minorities were harassed with full impunity culminating in the wanton destruction in A & B.
9. Chief Justice was removed arbitrarily by the thugs of MARA without any recourse to justice.
10. Inmates of Welikada prison were killed in the custody of the state, where they deem to be most protected.
Need more wonders you……… Grow up will you.
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CHANAKYA / August 6, 2015
Mr Ansar,
There is no point mentioning alleged wrong doings. I do not talk of Batalande Ranil or Gonawala Sunil or Richard de Zoysa. I warranted my points from history. Why did not the Govt punish the wrong doers ,including MR, if it is Yahapalanaya. Are 6 months too short? Do you think something else will happen next time, even if RW becomes P.M. for the Nth time? Wait and see Sir.
If President MS did not want to say OK to MR, he could have refused nomination. Why did he create this situation? SLFPers say he destroyed their party as well. SO ANYTHING CAN HAPPEN AS IT HAPPENED TO MS, the PRESIDENT & AS IT HAPPENED TO THE COUNTRY AND OUR CENTRAL BANK due to the doings of MAHENDRAN WITH RW’S BLESSINGS.
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Dr Laksiri Fernando / July 30, 2015
I have no disagreement with Lal Wijenayake that the Constitution (19A) gives some discretionary power to the President to select the PM from the winning party or coalition. However, the use of such discretionary power should be conditional on democratic principles. President’s ‘opinion’ stipulated in the Constitution as to ‘who most likely to command the confidence of Parliament’ is about President’s democratic conscience.
I don’t anticipate the possibility of UPFA winning a majority.
However, in the (unlikely) case of UPFA winning a clear majority (i.e. more than 113), it is democratically imperative for the President to appoint Mahinda Rajapaksa (MR), unless a significant number of UPFA members defect or express their confidence in Ranil Wickremasinghe or any other to form a national government. The latter scenario is most likely even in the unlikely case.
The allegations that Lal refers to (corruption, violations etc.)cannot be reasons not to appoint MR in the case of UPFA’s clear and united victory. That is not part of President’s discretion in the Constitution. In my opinion, the horse has bolted to an extent. That is why the MS wing in the SLFP/UPFA should not be complacent. They should not give up the Manape (preferential) competition whatever the odds (i.e. hooting etc.) created by the MR faction.
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rohan polwatte / July 30, 2015
This how UPFA RAJAVASSA AND ITS HENCHMEN BEHAVE.IF HE WIN KURNAGALA EVEN THEN KURUNAGALA IDIOTS ARE DUMB MUTTS.
Akkurassa police announced 6 United Peoples Freedom Alliance supporters were arrested over abducting United National Party supporter.
UPFA supporters have attacked the UNP supporter and taken away his three-wheeler while pasting the posters of UNP Matara district candidate Saagala Ratnayake.
Police chased the cab transporting the suspects and arrested them while at Diyalabe area.
Police recovered 326 posters of Saagala Ratnayake, iron bars and posters of UPFA candidate Manoj Sirisena.
<<Home
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Sellam / July 30, 2015
Who cares who comes as Prime Minister.
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Gratiaen. / July 30, 2015
Agree with the comments of Dr.Laksiri Fernando.In such a scenery.it will be a precarious situ’as we cannot trust MS will ever stand by his version not to appoint MR as the PM.
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Charles / July 31, 2015
Agreed with the comments of Mr. Lal Wijenayake .
If we consider the past events of history this is a realistic situation. President JR appointed Mr. Premadasa even though it was stated the Parliamentary Group preferred Mr. Gamini Dissanayake. President Premadasa appointed DB Wijetunga against Gamini Dissanayake and Lalith Authlathmudalige.
President Wijetunga appointed Mr. Ranil Wickramasinghe. Mrs. Chandika appointed her mother and subsequently she was replaced by Mr.Ratnasiri Wickramanayake.
In the recent past when Mr. Mahinda Rajapakshe was nominated in 2005, Mr. Anura Bandaranayake was projected as the PM in the event of UPFA victory. However, Mr. Ratnasiri was retained. In 2010, President Rajapakshe appointed Mr. DM. Jayaratne as PM. History shows all these appointments were made by the Presidents who were in power and no one raised any objection against the President’s decision.
The recent appointment of Mr.Ranil was intimated to the entire country by the common opposition candidate and it was repeated at every forum prior to the election. Accordingly the voters knew who will be the PM in case of the oppositions victory.
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D.Nimal / July 31, 2015
The primacy of democratic decision by majority votes or majority represtantative lies at foundation of National Democracy architecture outlined so far.
Now Lal Wijenayake Trotskyist turn anarchist-Democratic, that ignorant elites has been created New Fascist theory; that majority mandated will be No longer valid to be an appointment New Primer Minister. Undemocratic politics rarely extended beyond their justice of democracies boundaries which manipulated by Trotskyist type of anarchist politics.
Needless to say, it was Lal Wijenayake of UNP back Trotskyist of reactionaries bourgeoisie of class agent, did not accept democratic differences in standards and rules collective choice that exercised by majority people’s in a democratic fashion of governing rules.
It is also majority mandate is legitimizes by democratic rules in nationally and internationally. As long as elected people’s representative are negotiated on behalf on People’s majority verdict there is no exit clauses that Republic of Sri lanka, which constitution allow for and enhance democratic decision and deliberation.
UNP was not democratic party, current leadership of MS, UNP-Ranil and CBK politics this scaffolding collapses of democracy.
Lal Wijanayake in a sense ,the ideological battle of democracy and political conflicts in contemporary Sri lanka are continuation majority accepted values has been denied by Trotskyist anarchist of Lal.
In practice the current UNP ruling class led by MS & CBK have reduced this to define democracy as equality of all.
Indeed still, it would be legitimate to apply more stringent rules to authoritarian by UNP politics.
Universalizing the principle of majority democratic would no doubt be controversial issue under the UNP junta and MS regime.
Democracy of majority after all, is a global norms. It ought to be one of the cornerstone principle of the democracy rule practices by
Sri lanka since 1948!
The shape of democracy partnership of this kind majority by people’s verdict and to shoulder their due responsibility of national political democracy has to enrich by national democratic political parties not that by anarchist Trotskyist of pro-US and Pro-Indian ruling governances.
In fact this reaching an ugly dimension in the current Trotskyists democracy of majority context where this lethal combination of US and Indian hegemony decadence and degeneration of capitalist democracy is distorting the majority content of Sri lanka, polity.
The at the level of political superstructure ,colonial decadence was nexus with degeneration of capitalist democracy to products of a situation has been growing criminalization and Lumpenzation of society coexist has grows in Junta-Regime, feeling ,which are exploited by UNP-Ranil and MS & CBK ruling classes, as well as, US & Indian for their undermined Parliamentary political electoral objectives, which that so-called theory fabricated by Lal.W.. of Trotskyist anarchist.
Dr B.R Ambedkar said in 1949…” If we continue to deny it for long we will do so only by putting our political democracy in peril”.
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