By Mass L. Usuf –
The announcement of the appointment of Mr. Mahinda Rajapaksa as the Prime Minister and the removal of the sitting Prime Minister Mr. Ranil Wickremesinghe last Friday, 26 October 2018 was a shock to the nation. All are now talking about politics, law and democracy. The partisans on either side of the divide are calling the removal and appointment as constitutional while the other side is screaming that it is unconstitutional. There is another lot who unable to distinguish between what is political and legal are swimming against the current adding to the confusion. It is surprising to see some who are considered to be ‘legal experts’ also in this lot.
My interest in writing this column has to be explained. Firstly, I must confess that I have no political affiliation or inclination towards either of our defacto and dejure Prime Ministers or their respective parties. Secondly, my allegiance is to democracy and democratic principles. I am aware that these values have received a battering in our country nevertheless, we must all cling on to it.
Looking around, I find many people in a state of uncertainty unable to understand the constitutional legality of the matter. With this in mind, I developed a question and answer approach to the issue to help the average person understand. In certain places, I have provided an opinion of my own.
Question No. 1: What are the duties and powers of the President in the Constitution?
Answer: Article 33. (Relevant excerpt). The duties in relation to the Constitution is stated as follows:
“(1) It shall be the DUTY of the President to –
(a) ensure that the Constitution is respected and upheld;”
(2) The President shall have the POWER –
“(h) to do all such acts and things, not inconsistent with the
provisions of the Constitution or written law, as by
international law, custom or usage the President is authorized
or required to do.”
Article 33. (1) is simple and very clear. As far as 33 (2) is concerned, the President has no power to act contrary to the constitution. If he acts in such a manner, can that be argued to be abuse of power?
Question No. 2: Does a citizen have the duty to defend the Constitution?
Answer: YES. Article 28. states in relation to Fundamental duties:
“It is the duty of every person in Sri Lanka –
(a) to uphold and defend the Constitution and the law;”
Therefore, it is a fundamental duty of every person to defend the constitution.
Question No. 3: What is a National government?
Answer: Article 46. (5). “National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups.”
Question No. 4: What are the salient features of this Article 46. (5) on national government?
Answer: The salient features are:
- Formation of a government
- By the Party which has highest number of seats
- Together with other political parties or independent group
Question No. 5: Who is eligible to form a National government?
Answer: Article 46 (4). (Relevant excerpt). “The recognized political party which obtains highest number of seats in Parliament forms a National Government.”
Question No. 6: What does the constitution provide in a situation where a political party pulls out of the National government?
Answer: The constitution does not provide for this because common sense shall prevail. The National government is formed at the call of the party which has the highest number of seats in Parliament. If any party pulls out of the government, the government shall continue so long as the party which has the highest number of seats can demonstrate its majority in parliament.
Question No. 7: What is the relevance of the National government to the Cabinet of Ministers? Why is it relevant?
Answer: The relevance of the national government to the cabinet of ministers is only with regard to the increase in number of Ministers in the Cabinet under a national government and, nothing else.
Article 46. (4). (Relevant excerpt). “where the recognized political party which obtains highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, ……. , shall be determined by Parliament.”
Why it is relevant is because if it is a non-national government under Article 46 (1) (a) and (b) the number in the Cabinet of Ministers shall not exceed 30 and 40 respectively. In the case of a national government an exception to this made by Article 46 (4) where the parliament shall determine the number in the Cabinet of Ministers.
Question No. 8: Can the numbers in the Cabinet of Ministers change?
Answer: Yes, it can. Article 43. (3) (Relevant excerpt). “The President may at any time change the composition of the Cabinet of Ministers.”
Question No. 9: Does any change in the composition of the Cabinet of Ministers dissolve the Cabinet?
Answer: No. It does not dissolve.
Article 43. (3) (Relevant excerpt). “Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.”
Question No. 10: Is it correct to say that the cabinet stands dissolved because a party or parties have pulled out of the national government?
Answer: It is not correct. The Cabinet is a vital government organ. Even when the Parliament is dissolved the Cabinet shall continue as per Article 47. (1) “The Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall, notwithstanding such dissolution, continue to function..”
Therefore, it is illogical to say that the cabinet stands dissolved because a party or parties have pulled out of the national government. When the party which has the highest number of seats in parliament by itself and with the support of other parties can demonstrate its majority, the government is intact and the cabinet continues.
Question No. 11: Is the position of the Prime Minister undisturbed by the change in the number of Ministers in the Cabinet?
Answer: Yes. The position of the Prime Minister continues undisturbed despite change in the composition because the Cabinet of Ministers is not dissolved and is continuing.
Question No. 12: Is it correct to say that where there is a change in the composition of the Cabinet of Ministers, the Cabinet continues to function and, therefore, the Prime Minister also continues to function?
Answer: Absolutely correct.
Question No. 13: Is it correct to state that the Prime Minister ceases to function when the Cabinet of Ministers cease to function?
Answer: Absolutely correct. Article 46. (2) “The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function.”
Question No. 14: When is the Cabinet of Ministers deemed to have dissolved?
Answer: 48. (1) (Relevant excerpt). “On the Prime Minister ceasing to hold office by death, resignation or otherwise, the Cabinet of Ministers shall stand dissolved.”
“(2) If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved.”
In the current situation, none of the above had occurred. Therefore, the Prime Minister has not ceased to hold office and logically, the Cabinet of Ministers also continue to function.
Question No. 15: Is the Cabinet of Ministers dissolved when Parliament is dissolved?
Answer: No. Even if Parliament is dissolved the Cabinet of Ministers continue to function. Article 47. (1) (Relevant excerpt). “The Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall, continue to function.”
In this context, how can it be argued that the Cabinet of Ministers is dissolved when there is only a change in the composition (by the withdrawal of the UPFA). The change can be remedied by the President appointing new ministers on the advice of the Prime Minister in terms of Articles 42, 43, 44 and 45.
Question No. 16: When does the Prime Minister’s Office cease to function?
Answer: 46. (2) (Relevant excerpt). “The Prime Minister shall continue to hold office unless he –
(a) resigns his office by a writing under his hand addressed to the President; or
(b) ceases to be a Member of Parliament.”
Question No. 17: What is the law relating to appointment of the Prime Minister?
Answer: Article 42. (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.”
By admission of the President himself in his address to the nation yesterday, 28.10.2018 he stated several reasons for the appointment of a new Prime Minister. Unfortunately, none of the reasons complied with the basic constitutional requirement which is “appointing the person most likely to command the confidence of Parliament.” To make things worse, he prorogued the Parliament without giving an opportunity to the new Appointee to prove that he commands the confidence of Parliament.
From the viewpoint of Articles 33 (1) and (2) it is questionable whether there has been abuse of power by the President or whether he has failed to respect and uphold the constitution.