20 September, 2020

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Mahinda Rajapaksa Cannot Become Prime Minister

By Reeza Hameed

The question whether ex-President Mahinda Rajapaksa is eligible to be appointed to the Prime Minister’s post if he has the support of a majority of members in Parliament following the August 17 poll is the subject of current debate.

President Sirisena has made public his intention not to appoint Rajapaksa as the Prime Minister and has hinted that ‘there are enough seniors in the party to be the Prime Minister’.

MahindaThere are some within the UPFA who want Rajapaksa as their Prime Minister in the event of a UPFA majority in Parliament. A.H.M. Fowzie, for instance, has acknowledged that the appointment of the Prime Minister is the prerogative right of the President but that, after the elections are over, the UPFA ‘will prevail upon President Sirisena to accommodate Rajapaksa as the Prime Minister’. Another UPFA candidate has threatened to do a Dahanayake and run around with the mace if Mahinda Rajapaksa is ignored for the post. G.L. Peiris has weighed in to say that nowhere in the constitution is it stated that a former President cannot become Prime Minister. The President, he said, must appoint as Prime Minister the member who commands the support of a majority of parliamentarians, and he must appoint Mahinda Rajapaksa if he happened to be that person. Former Chief Justice Sarath Silva has declared as untenable the argument that Rajapaksa is disqualified from acting as President simply because he has already been elected twice as President.

It is the President who must appoint the Prime Minister. His power to appoint the Prime Minister is located in Article 42 (4) of the Constitution. It is stated in that Article that “(t) he 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.”

Those who would like Rajapaksa as their Prime Minister have, it seems, argued that the President is bound by British Parliamentary conventions in the appointment of the Prime Minister. Lal Wijenayake (Colombo Telegraph 30.07.2015) has argued to the contrary, asserting that the President is not just a constitutional figurehead and that the appointment depends on the opinion of the President. He has identified certain reasons which might have led President Sirisena to form his opinion against a Rajapaksa premiership.

I take a different approach and venture to suggest that an analysis of the Constitution would point to impediments in the Constitution that would constrain the President’s discretion under Article 42 (4) so as to prevent him from appointing Rajapaksa as the Prime Minister. Let me explain.

A provision in the constitution has to be read in its context and as part of a whole. A part of anything cannot be understood without an understanding of the whole. It must be read in harmony with the rest of its provisions. Article 42(4) cannot be read on its own, and there are other provisions in the Constitution that would impinge upon the interpretation of this provision.

Articles 31 (2) and 92 provide that no person who has been elected twice as President shall be qualified thereafter to be elected to such office by the People. It is not disputed that they operate to disqualify Rajapaksa from being elected as President because he has been elected twice already. The prohibition against a person holding the office of the President for more than two terms has as its rationale that the perpetuation of power in the same person is likely to lead to its abuse. It has a democratic basis. The people voted out the ex-President at the recent poll because they did not want him to serve a third term. The Eighteenth Amendment, that permitted the ex-President to contest a further term, has been abolished by the Nineteenth Amendment, which has reinstated the two term limit.

If Mahinda Rajapaksa is appointed as Prime Minister it would enable him, in certain circumstances, to exercise the powers of the President, albeit temporarily. The problem that would arise if Rajapaksa is appointed as Prime Minister becomes apparent if we examine those provisions in the Constitution which provide for the Prime Minister to act in the President’s office, either because a vacancy has arisen in that office prior to the expiration of the term of his office or because he is unable to act temporarily.

A vacancy in the President’s office can arise, for instance, upon his death, resignation or removal from office. In that case, Parliament shall elect one of its members as President for the unexpired period of the term, provided that the person so elected by Parliament is ‘qualified to be elected to the office of the President’. As Rajapaksa is disqualified by Articles 31(2) and 92 to be elected as President, Parliament cannot elect him to fill a vacancy in that office, even if the unexpired period of the term is only a day and the members are unanimous in their desire to elect him. If a person cannot be elected as President by the People, then he cannot be elected by the representatives of the People.

It is provided that where the vacancy arises upon the President’s death, for example, the Prime Minister shall act as President until the vacancy is filled by an election by Members of Parliament. There are other occasions when the Prime Minister may have to act temporarily in place of the President. Such an occasion may arise, for example, when the President’s election has been declared void by the Supreme Court pursuant to an election petition. In that case, the Prime Minister is required to act as President until such time as a fresh presidential poll is taken. The President may also appoint the Prime Minister to act in his place in the event of his illness or absence from Sri Lanka.

On these occasions the Prime Minister gets to become the President by a process other than by election. As Article 31(2) disqualifies a person who has been elected twice as President from thereafter being ‘elected to such office by the People’, can it be suggested that there is no prohibition to that person occupying that office other than by election? It is not a valid suggestion.

The objective underlying the prohibition against a twice elected President from being elected for a further term is to bar him from exercising the powers of that office. It should not, therefore, make any difference as to how he gets to exercise those powers. If a person cannot be elected as President, then it should follow that he cannot also be appointed to that office. It would be illogical to argue that the People cannot elect Rajapaksa as President even for a day, but the President, who is elected by the People, may appoint him to act in that post.

Even otherwise, post 19th Amendment, the President will have to exercise many of the powers of his office on the advice of the Prime Minister. Article 46(2), which was introduced by the 19the Amendment, goes so far as to say that a Minister, once appointed, cannot be removed by the President except on the advice of the Prime Minister. As Sarath Silva has said, arguably ‘the Prime Minister is more powerful than the President according to the 19th Amendment.”

It is a maxim of law that what cannot be done directly, cannot also be done indirectly. The provisions of the law cannot be evaded by shift or contrivance and the objects of a law cannot be defeated in an indirect or circuitous manner. Indeed, Article 40(2) says that the provisions of the Constitution relating to the President shall apply, in so far as they can be applied, to an acting President.

It has been suggested that it would be contrary to democratic principles not to appoint Rajapaksa as Prime Minister if a majority of the members wish to have him appointed to that office. However, it is negated by another democratic principle embodied in the prohibition that a person should not be allowed to wield presidential powers directly or indirectly beyond a certain period.

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Latest comments

  • 19
    3

    The question of electing the PM is based on President’s decision and it is very clear the campaign so far shows a clear direction that UNP led alliance would win and Ranil W would be appointed as PM and therefore the question eligibility of MR does not arise.

    • 6
      0

      RE:Mahinda Rajapaksa Cannot Become Prime Minister

      “The question whether ex-President Mahinda Rajapaksa is eligible to be appointed to the Prime Minister’s post if he has the support of a majority of members in Parliament following the August 17 poll is the subject of current debate.”

      “President Sirisena has made public his intention not to appoint Rajapaksa as the Prime Minister and has hinted that ‘there are enough seniors in the party to be the Prime Minister’.”

      Looks like Mahinda Rajapaksa and his Cronies, aka Liars, Crooks, Tgieves and Criminals, still have hope their Chief will be back.

      Do the voters of Sri Lanka have Common Sense, the way they had it on January 8, 2015?

      Let us all hope that will be the case on August 17, 2015.

  • 13
    3

    Nice one Reeza, and re-states the message that a previous scribe articuated in CT’s columns.
    The indescribable horrors that took place during the previous 9+ years should more than amply serve to remind the people that they should send our hero from Medamulana home to roost and contemplate his navel for the rest of his mortal life, and perhaps stimulate him to teach his family a few lessons in decorum, humility and the value of serving the people instead of robbing from them.
    Amen.

  • 4
    5

    Mate..Are you on to something which our Dalits don’t know about?…

    Like Galleon Ravi’s Pathala stunt which came as a total surprise .

    And Galleon is making the most of it to get the Elite and the .Anglicans more on to his Ballot Box than that of Anura Kumara’s..

    Is it a trial run for bigger things?..

    Galleo I am sure was around when they stopped both Athlathmudali and Gamini ….Right….

  • 2
    7

    No one can deny the the right of MR to be the PM of the country just because they read the constitution through a colored glass.
    Reeza Hameed comes with a flawed argument on a hypothetical situation.
    Fortunately it is the supreme court of this country and not Reeza hameeds who have the final authority in constitutional interpretation and any one can go to supreme court to get a determination if and when such a situation arises.

    This is what the constitution says
    ” 4. Article 31 of the Constitution is hereby amended as
    follows:-
    (1) by the insertion immediately after paragraph (1) of
    that Article, of the following new paragraph:-
    “(2) No person who has been twice elected
    to the office of President by the People, shall be
    qualified thereafter to be elected to such office by
    the People.”
    and nowhere in it disqualifies a person who has completed two terms from acting for the president.
    Then comes the argument that its not just the words but the principle involved,then again it is up to the Supreme Court.
    What is more funny is the argument by the same people that the president has the discretion in appointing the PM. This is what the constitution says.
    41(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.
    Here,clearly the President discretion is limited by the qualification ‘of his opinion is most likely to command the majority’ and that opinion should be supported by ground realities.
    Here the problem is if the president decides to overlook the ‘the parson who command the confidence of the parliament’ part,we will have another lame duck parliament and we will have to live with it for the next four and half years.

  • 0
    3

    “Articles 31 (2) and 92 provide that no person who has been elected twice as President shall be qualified thereafter to be elected to such office by the People.”

    Technically, there is nothing to prevent the parliament from electing as acting president any member of parliament for example, instead of MR, if the need so arises.

    “A vacancy in the President’s office can arise, for instance, upon his death, resignation or removal from office. In that case, Parliament shall elect one of its members as President for the unexpired period of the term, provided that the person so elected by Parliament is ‘qualified to be elected to the office of the President’.”

    Therefore the argument that MR should not be made PM because he cannot be made ‘acting president’ is not a strong one at all. They could always choose someone else for that.

    In fact, if the president appoints someone who does not command the confidence of parliament, in his opinion, then hes he is in any case going against the constitution in a bigger way.

  • 2
    1

    K A S is forever repeats the same old thing. ” His Masters Voice ” Full stop. I wonder whether this mouthpiece have a lot to loose if YAHAPALANAYA wins.
    What will he do on the 18 th of August Morning Pack up his bags along with his DALIT MASTER GANG??

  • 3
    1

    If MR becomes Prime Minister after the elections, he will within a couple of months ‘bump off’ MS and get himself appointed as the acting president. He will then follow it up by installing himself as the permanent president. Thereafter, he will be only one short step away from crowning himself as the monarch of Sri Lanka, with Namal as the cr/lown prince.

    It is all nothing for MR as he can change the Constitution of the Democratic Socialist Republic of Sri Lanka with the same ease with which he changes his underwear.

    • 0
      0

      [Edited out] Please avoid typing all capitalized comments – CT

  • 9
    1

    Every single person, from CJ Sarath N. Silva to the motley crew of MP’s who’s wishing for the return of Mahinda Rajapakse, is living in fear of Welikade jail for their bribery and corruption allegations, and Mahinda Rajapakse, a fellow crook, is the only one who’d grant them immunity.

  • 1
    0

    MR being made PM hinges on several postulates:

    UPFA winning the election outright; Majority of UPFA MPs wanting MR to be made PM; UPFA buying over UNP MPs, in case UNP does not win outright.

    How likely is that?

    In his reason for offering MR a nomination under SLFP/UPFA MS has stated that he did not wish to see his party split. If MS were to maintain this position in every decision he makes from now on, only an outright win by UNP could stop MR from being made PM.

  • 0
    0

    “Such an occasion may arise, for example, when the President’s election has been declared void by the Supreme Court pursuant to an election petition. In that case, “If the appointment of Prime Minister violates the constitution, then is that not possible to call the Supreme Court to intervene? Why is Reeza Hameed arguing if a prime minister is appointed he/she cannot be removed and he/she replacing the President also cannot be prevented? Two times president may not come back third time. If the Prime Minister is two times president he may not came back as third time only. Is that said anywhere he/she should not sit even on the Chair to make a documentary production? Is that anywhere said that he/she should be even a temporary replacement? Why is Reeza Hameed is arguing that a two times president cannot replace a president for emergency purposes? Absurd!

    The constitutional equality of President and Prime minister is not preventing a president becoming prime minister. By the same token, if Reeza Hameed come back to CT tomorrow and starts to argue that a two times prime minister cannot become a president because that the two positions are constitutionally equal, that is really ridiculous. Constitution is clearly saying only two times president cannot become third time president. Period! Buffoon Silva’s argument does not count. Buffoon Silva blamed Old King that he was the one appointed old King as president but the buffoon was not taken care. Now that feud is settled, Buffoon Silva is saying only 19th amendment is violating the constitution. That is why he brought the issue of Prime Minister is more powerful than president. Buffoon Silva is always with the Wild Old King. “A provision in the constitution has to be read in its context and as part of a whole. A part of anything cannot be understood without an understanding of the whole. Then why is Reeza Hameed putting an argument that EP an EP are equal then EP cannot become a EP but vice versa will not violate the constitution?

    There is no hard and fast rule that Prime Minister must act for President. If that happen, on the application to Supreme Court it will direct parliament act properly.

    Even if Ranil wins he will not be appointed as Prime Minister. It is not the Old King, by the statement of Nambukara Helambage Rajitha Harischandra Senaratne that is the need of the New King. Rajitha Senaratne has said if somebody had caused the white flag murders, they cannot be saved. So the white flag murders were carried out under the supervision of New King, he is the one need to be saved from Internal Inquiry. So all what is the new King can do is to appoint the Old King to resist the inquiry as he has been doing until January.

  • 0
    0

    This whole issue of the probability of Mahinda Rajapakse becoming the Prime Minister should not pose a question, concern, problem or whatever since UNP is so confident that they will defeat MaRa by far – Isn’t it so????? Then why is all this fuss. The truth is, Ranil will lose and Sirisena will be ousted in the shortest possible time. After all, this is not astrology but real logic.

  • 1
    0

    Whether UPFA wins or loses Mahendra Percival Rajapakse must needs be ensconced as THE CRIME MINISTER ~@~

  • 0
    0

    Mahinda for PM. What a joke.

    A thug, murderer, Thief and bloody Tyrant should rot in a prison cell. NEVER to be released.

    Lock the monster up and throw the key away.

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