By Rusiripala Tennakoon –
With a sigh of great relief and at a huge cost the UNP surmounted the No-Confidence Motion (NCM) in Parliament. It is public knowledge that the conditions, attached to the support extended against the motion are many both from inside the UNP and outside now emerging as liabilities.
Those in the party, the rebels who were vociferous as well as the silent mediocre elements gave clear signals of a need for a radical change. There was a significant emphasis on the word “radical” in their claim. It was well understood that what they expected was a complete change from what it is and what it was.
Those who supported the UNP leadership at the NCM from outside too have had several issues which they could not convey to them under normal circumstances and chose this opportunity to push some of their claims with the obvious strength they had to prevent the UNP leadership from falling. They remain secrets to the country and no one can guess the gravity and the effect of these on the others from whom it has been hidden. Nevertheless those who obtained the conditional support for their survival will have to take appeasing measures. We will only feel the impact only after they are implemented!
The position of the SLFP, the coalition partner of the so-called national government too is rendered further complicated. Earlier the party had faced a dilemma due to a section of the SLFP deciding to remain in the opposition without joining the government. They have now transformed into a new distinct group under a new party name and a symbol. So any further defectors will be neither there nor here. In the opposition they will be “nacha so, nacha anno” meaning neither a cocoon nor a butterfly. If the party does not take a decision which all could abide by, there will be utter chaos. Imagine the controversy the MPs, Ex-Ministers and some others if they continue in the government will have to face in the eyes of the party members ! After all a party is the membership. Whatever the leadership decides as temporary and makeshift arrangements for their survival, the ultimate support and endorsement comes from the party members. Therefore the SLFP will have to take a firm decision whether to continue as coalition partners with the UNP or not. If they decide to continue what is the fate of those who supported the NCM? They will most certainly be a strong group commanding the respect of the party members and those members of the public who desist corruption. Because they will be recognized as people who stood up to their principles against corruption. Those remaining to continue will have no future among the voting population of the SLFP. This will be an inescapable situation.
Therefore the party has to take a firm decision, considering the pros and cons. In the long run a decision to part its ways from the UNP appears to be the most advantageous from many angles. They will be able to freely stand against the severe economic bungling championed by the UNP which is very likely to worsen in the future. The SLFP will also have the freedom and opportunity to build up the party which is now in serious dis-array due to many factors.
The President as the head of any cabinet by virtue of his constitutional responsibility will continue and will serve to safeguard the large public interest in his capacity.
The position of the UNP on the other hand will become extremely vulnerable due to several factors. On their own they will not have a clear majority. They may have to spend a colossal amount to ensure a majority because they will not have the liberty to offer Ministerial posts as they wish. There will be automatic restrictions imposed upon them due to constitutional limitations. The bargains for cross-over will be therefore on not so attractive terms and the casualties would be too clownish to depend upon, under such circumstances.
Irrespective of all the above possibilities there are inevitable cross-roads looming as constitutional backlashes.
The first ambiguity or a doubt of explicitness arose when the President had to seek the Supreme Court guidance about his term of office under the 19th Amendment. It was only then many realized that a transitional provision under 49(1) (b) had a special reference to the persons holding office currently were subjected to their continuation under the amended provisions of 19A!
In the current context there can be several other conflicts and ambiguities arising out of the 19A. The legal luminaries under whose prerogative and purview such matters fall will address those when they crop up. But as ordinary citizens who also have an access to the constitution of the country, I wish to point out some grey areas as discussed by them.
Firstly ,Article 46 (4) of chapter VIII (which has been completely replaced under 19A) refers to the concept of the National Government. It states inter-alia “where the recognized political party or the independent group which obtains highest number of seats in Parliament forms a National Government”.
Thereafter section 46(5) of the same chapter spells out how a National Government is formed. It states, “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.”
As far as we can see there is a significant emphasis on “recognized political party” in this provision.
In the 2015 August election, the only recognized party that got the highest number of seats was the UPFA. It was a recognized political party registered with the commissioner of elections.
Whereas on 12th July 2015, after the election had been called , the UNP, SLMC, and TPA signed agreements with the JHU and the anti-Rajapakse members of the SLFP to form the UNITED NATIONAL FRONT FOR GOOD GOVERNANCE ( UNFGG) to contest election. It was not a recognized political party. The All Ceylon Makkal Congress (ACMC) also contested with the UNFGG. The UNFGG had originally being established by the renaming of the JHU after it left the UPFA. It was registered as a political party with the Diamond symbol. Despite this the UNFGG contested the election under the name and elephant symbol of the UNP. UNFGG General –Secretary was Champika Ranawaka and not the General Secretary of the UNP.
Champika Ranawaka stated then that the JHU name and its conch symbol will be revived after the election. All these points to the fact that the UNP as a single “recognized party” did not secure for the party a sufficient number of seats to be qualified as the recognized political party that obtained the highest number of seats. The UNFGG won 93 seats as a group of all other parties, whereas the UPFA singly as a recognized party won 83 seats.
The agreement signed after the Central Committee meeting of 20th August 2015 by the SLFP General Secretary Duminda Dissanayake and Kabir Hashim General Secretary of UNP as a Memorandum of Understanding between the UNP and SLFP to form a Unity Government, therefore has no legal validity to form a National Government because neither party has the eligibility as the “recognized political party with the highest number of seats” to join with another and form a National Government.
There are other serious constitutional issues which if challenged may lead to further ambiguities requiring legal clarifications.
43 (2) state President shall, on the advice of the Prime Minister appoint from among members of parliament, Ministers to be in charge of the Ministries determined by the President.
But 44(1) which deals with the appointment of non cabinet Ministers, state “The President may, on the advice of the PM appoint from among members of Parliament, Ministers who shall not be members of the cabinet of Ministers”.
Emphasis on shall and may is by the writer. Does it mean that the President has to appoint the Ministers and the advice of the PM is not compulsory? Whereas the application is slightly different when it comes to non cabinet ministers because it states President may and not shall.
The power to determine the number of cabinet ministers is only with the President and the assignment of subjects to each Ministry is also a power vested only with the President.
There is provision for the President under 46(3) to change the assignment of subjects and functions and the composition of the cabinet of Ministers at ant time. The PM will have no say legally on such matters.
According to Section 48 (1) of the Constitution, when the PM ceases to hold office by removal, resignation or otherwise (Sinhala Version) the cabinet of Ministers stands dissolved.
In such circumstances the President has to appoint a new PM and a cabinet of Ministers.
If the President decides to introduce a new cabinet with new assignment of functions and a new composition under powers vested in him then the existing cabinet stands dissolved.
Then the President will have to appoint a new PM and a cabinet of Ministers, as determined by him.
The new PM will have to advice the President who the Ministers are.
46(4) states that in the event of a National Government the number of Ministers and Deputies will have to be determined by the Parliament.
But according to 43(1) it is the President who has to decide the number of Ministers and Deputies, the subjects and functions of such Ministries.
Is there a conflict in this instance?
According to 46 (2) PM shall continue to hold office only during the period which the cabinet of Ministers continues to function. Therefore if the President decides to form a new cabinet, the office of the PM falls vacant until a new PM is appointed.
The 19th Amendment is a hurriedly passed constitution. The current context demands the application of its provisions to the circumstances that have arisen.
So what is looming in the aftermath of the NCM is not a rosy picture.
God save the King!