By Rusiripala Tennakoon –
“Constitutions are primarily about political authority and power- the location, conferment, distribution, exercise and limitation of authority and power among the organs of a State. They are concerned with matters of procedure as well as substance. More often than not they also include explicit guarantees of the rights and freedoms of individuals as well as principles by which the State ought to be guided or to which it ought to aspire, and statements of citizen’s duties which are referred to as ideological pronouncements
There is no preordained stereotype of an ideal constitution. The form and content of a constitution will depend first on the forces at work when the constitution is established and amended, secondly on common-sense considerations of practical convenience and thirdly on the precedents available to the politicians and their advisers who draw up the constitution……….” ~ Stanley de Smith- Professor of the Laws of England – Cambridge University
The Constitution of Sri Lanka, which had undergone 18 amendments earlier, was amended for the 19th time during the 100 day interim government period under the Premiership of Mr. Ranil Wickremesinghe. Mr. Wickremesinghe’s party, the UNP, was a minority party in the Parliament at the time. The majority required for the amendment of the Constitution was secured with the help of President Maithripala Sirisena.
Major changes effected among others, by this amendment were as follows;
1. Insertion of a new article for the right of access to information,
2. Limitation of the President’s term of office from 6 to 5 years and the disqualification to contest a Presidential election after two terms of office as President.
3. President to be responsible to parliament
4. Establishment of the Constitutional Council
5. Replacement of Chapter viii of the Constitution( dealing with the Cabinet of Ministers under the EXECUTIVE )by a new chapter viii.
6. Limitation of the term of the Parliament to 5 years
7. Limit the power of President to dissolve the Parliament. Under the new provision President cannot dissolve the parliament before the expiry of a period of 4years and 6 months
8. Appointment of 10 Commissions including Police Commission, Audit Service Commission
More attention is focused in the current context on the replaced section of the 19th amendment dealing with the Executive and the Cabinet of Ministers.
The replaced Chapter viii encompass the following major issues;
(For convenience the constitution before the 19th amendment came into effect will be referred to as the Old constitution and the one after the 19th Amendment as the New Constitution.)
Article 42(1) of the new constitution is about the PM and the Cabinet of Ministers. 42(3) states “The President shall appoint as Prime Minister, who, in the President’s opinion, is most likely to command the confidence of Parliament.”
43(1) President shall , in consultation with the PM, where he considers such consultation to be necessary, determine the number of Ministers and the assignment of subjects and functions to such Ministers.
43(3) President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers…………
According to article 46(2) the PM shall continue to hold office throughout the period during which the cabinet of Ministers continues to function…………
It follows from this that if and when the President decides to change the Cabinet under his Powers under article 43(3) existing cabinet ceases to function and ipso facto Pm ceases to hold office as under article 46(2)
Then it falls within the Powers of the President to appoint a new PM who he thinks has the likelihood of commanding the confidence of the Parliament. The question of majority does not arise here as in Jan 2015 the President appointed RW as PM when he did not have a majority but the President opined that he would command the confidence of the parliament. This was confirmed correct since there was no no confidence against that PM by the than parliament.
Section 43(2) of the Old constitution states, “notwithstanding the dissolution of the cabinet of Ministers, the President shall continue in office”.
This provision has been removed under the amendment.
The right of the President to appoint Ministers from among the MPs has been curtailed.
Under Section 44 of the Old constitution, President could appoint, from among the MP s, Ministers to be in charge of the Ministries determined by the President in consultation with the PM or without. Section 44 (1) a) and b)
The new article 43 (2) states “ President shall, on the advice of the PM appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined”
According to section 43(1) of the amended constitution it is the President who determines the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers in consultation with the PM where he considers such consultation to be necessary.
But according to new article 43(2) “ President shall on the advice of the PM, appoint from among members of Parliament, Ministers to be in charge of the Ministries so determined.
The selection of the individual MPs for such positions falls within the purview of the PM since it is only on his advice that the President can give the appointment.
46(1) a) and b) limits the Total number of Cabinet Ministers not to exceed 30 and the deputies not to exceed 40.
Section 47 of the old Constitution read as follows-:
The PM ….shall continue to hold office throughout the period during which cabinet of Ministers continues to function….. Unless he,
a) Is removed by a writing under the hand of the President
b) Resigns his office
c) Ceases to be a MP
The replaced new section reads as follows (section 46(2) ;
The PM shall continue to hold office throughout the period during which cabinet of Ministers continues ….unless he –
b) Ceases to be a Member of Parliament
The provision under subsection a) of the OLD one dealing with the PM ceasing to hold office due to a removal under the Hand of the President has been dropped in the amendment.
Section 47, of the old Constitution dealt exclusively with the tenure of office of the Prime Minister, Ministers and Deputy Ministers and specifically referred to 3 circumstances under which they will not be able to continue holding of office. They are a)removal by writing under the hand of the President, b) resignation, and c) ceasing to be a Member of Parliament.
Amended article 46 of the new constitution deals with the tenure of office of the PM and the limitation of numbers and tenure of office of Ministers and Deputy Ministers. However 46 (2) deals separately with the provisions applicable to the circumstances under which the PM is deemed to vacate office and 46 (3) how that happens regarding the Ministers and Deputy Ministers.There are 3 specified circumstances applicable to the holding of office of the Cabinet of Ministers and Deputy Ministers under this; viz. Removal, resignation and ceasing to be an MP,
Whereas 46(2) of the new constitution specify only two applicable circumstances, as applicable to PM ceasing to hold office, viz. resignation and ceasing to be a Member of Parliament.
According to this amended provision the power for the President to remove the PM by a letter issued under his signature has been dropped and the Power the President had to remove a Minister has been curtailed with a rider that it can be done only with the advice of the PM.
Quote-: “removed from office under the hand of the President on the advice of the Prime Minister”
As to why such provisions ,one limiting the right of the President to remove a Minister and the other taking away the right of the President to remove the PM , became so important is a big question. In the context of the dilemma today we can presume that the constitutional wizards have foreseen the need to include such extraordinary provisions.
There appears to be an unexplainable ambiguity here because even under the new constitution, elsewhere in articles 47(2) and 47 (3) the right to remove the PM, any Minister or a Deputy Minister remains with the President ( except under 46(3) a) where it can be done only under the advice of the PM .
Dissolution of the Cabinet of Ministers comes under 48(1) of the new constitution. There it states, “On the PM ceasing to hold office by Death, resignation or otherwise ……..the Cabinet of Ministers……. shall stand dissolved and the President shall appoint a PM , Ministers and Deputy Ministers, in terms of articles 42 , 43 and 45.
Here there is another ambiguity seen due to a difference (a remarkable one in the current context) between the amended Sinhala version and the English. The Sinhala version consist of the removal of the PM as one reason for PM’s office to fall vacant whereas the English version omits this and confines it to two reasons only namely death and resignation while another strange additional provision is included as “otherwise” among the reasons.
Now whether the removal of the PM under his hand can be considered as a matter coming under this “otherwise” is leading to confusion. But according to the Law where there is a difference between Tamil and Sinhala, the Sinhala should prevail. Hence article 48(1) ( Sinhala version)can be considered as providing an unfettered Power for the President to remove the PM.
Another discrepancy between the English and Sinhala versions of the new article 48(1) is that “ Death” as a reason for the PM to cease hold office is appearing only in the English version. So it appears that the reason “otherwise” has been introduced deliberately to deal with such discrepancies.
It is intriguing why a new constitution provided for a reason to be falling within an undefined “otherwise” leading to interpretations when the old constitution was more specific and did not contain such ambiguities!
Section 49 of the amended constitution deals with Transitional Provisions and specifically refer to applicability of the amended provisions of the constitution to the PM and the President. There is an anomalous situation arising out of this transitional provision. According to section 49 the President has to continue to hold office only under the provisions of the amended Act whereby his Term of Office gets curtailed to 5 years. He was however elected to office by the voters exercising their franchise under the constitution that prevailed then for a term of office of 6 years. By this transitional provision the period gets reduced to 5 years. There appears to be an infringement of the rights of the People who voted him for a 6 year period due to this. A fundamental issue dealing with the sovereignty of the people should have been the subject for a determination by the people at a referendum.
The inclusion of the Prime Minister under the transitional provisions does not appear to be of any importance since the PM s term was limited to that interim parliament scheduled to be dissolved at the end of 100 days. This question is relevant because it is only the period of the term of the President that goes beyond the dissolved parliament and extends to the period of the new parliament. Whereas it is not so in the case of the PM who in any event goes out with the dissolution and the new parliament will have a new PM appointed under the provisions of the 19th amendment. No special transitional arrangement becomes necessary for the PM.
Therefore the hurriedly amended constitution appears to have brought serious limitations of the Presidential powers in an unexpected manner.
The crisis arisen now in the country and the concerns expressed regarding the continuity of the National Government by the constituent parties has created a dilemma under which Public would be interested to know many things.