27 April, 2018

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President Is Powerless To Remove The Prime Minister

By Reeza Hameed

Dr. Reeza Hameed

Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears.

I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister.

I disagree with this conclusion for the reasons I have given below.

Tenure of Prime Minister’s office pre-Nineteenth Amendment

The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he

a) is removed by the President;

b) resigns his office; or

c) ceases to be a Member of Parliament.”

The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015.

President surrendered his power to dismiss the PM

The Nineteenth Amendment somewhat drastically curtailed the President’s powers and reconfigured the power relationship between the President, on the one hand, and Parliament and Prime Minister on the other. President Sirisena himself adumbrated the overall objective of the Nineteenth Amendment in the course of a speech he delivered on 23 April, 2015, when he said:

“In order to build a democratic and civilized society, it is necessary to prevent the emergence of dictatorship and taking control of state power, state assets, the judiciary, parliament and all of this to one’s own control that comes from the Executive Presidential system.

This should be immediately changed. I have worked towards this in the past three months. I am not aware of any leader in the world who had obtained an office with all these powers but has been as flexible in trying to get rid of those powers that had been bestowed on such a leader.

The Attorney General informed the Supreme Court that in keeping with my advice these powers should be removed. My Constitutional Adviser also informed the Supreme Court that these powers should be removed. We took a political decision on this. The Supreme Court has given a decision on this.” 

By the Nineteenth Amendment, the President surrendered not only the power he possessed to summarily dissolve Parliament at any time but also his power to dismiss the Prime Minister. The Nineteenth Amendment was seen as the first step in the process of enacting a new constitution to give effect to the mandate given by the people, an important element of which is the curtailment if not the abolition of the executive presidency. It was designed to insulate both Parliament and Prime Minister from the vagaries of Presidential whim. This commitment that has been built into the Nineteenth Amendment can neither be reversed nor nullified by an expansive reading of the President’s powers.

In the Nineteenth Amendment, the provision relating to Prime Minister’s tenure is located in Article 46(2). Article 46(2) reflects Parliament’s intention to withdraw from the President the power to remove the Prime Minister. It reproduces the corresponding provision from the principal enactment but without clause (a). Accordingly, the Prime Minister shall hold office unless

a) he resigns from office; or

b) ceases to be a Member of Parliament.

It is noteworthy that there is no inconsistency between the English and Sinhala texts of this article. The President’s power to remove the Prime Minister is absent from both texts.

That the removal of clause (a) from Article 46(2) was intentional will become clear upon a reading of Article 47(1), which provides for the continuation in office of the Prime Minister and the Cabinet of Ministers following the dissolution of Parliament. As both the Prime Minister and the rest of the Cabinet of Ministers have to be Members of Parliament, but for this provision, the dissolution of Parliament would cause their offices to fall vacant. Therefore, it is provided that, notwithstanding the dissolution of Parliament, the Prime Minister and the Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall continue to function until the conclusion of the General Election.

The important point to note is that it refers the reader back to Article 46(2)(a). That is because the question whether the Prime Minister’s office has fallen vacant is one that will have to be determined by reference to Article 46(2). In so far as the Prime Minister is concerned, the only other way he could cease to hold office is by resigning from his office.

The phrase “removal from office” which appears in Articles 47(2) and (3) are now redundant because the power to remove the Prime Minister has been withdrawn from the President.

The purpose of Article 47(2) is to enable the President to appoint a Prime Minister in the event the latter’s office falls vacant during the period between the dissolution of Parliament and the conclusion of the General Election (which we may for convenience refer to as the “the intervening period”). Article 47(2) does not empower the President to create a vacancy during this period but only to fill one. If the office falls vacant during the intervening period, the President may appoint one of the Ministers as Prime Minister. If the vacancy occurs before Parliament is dissolved, then the President will have to appoint a person who commands the confidence of Parliament. When Parliament stands dissolved, it would be absurd to require him to appoint a person who will command the confidence of a non-existent Parliament. Therefore, it is not a requirement for appointment under this provision.

The logic of this interpretation should apply with equal force to Article 48(1). Whereas in the English text of this Article it is provided that the Prime Minister may cease to hold office “by death, resignation or otherwise”, the Sinhala text states that the Prime Minister may cease to hold office upon “removal from office, resignation or otherwise.” Article 48(1) does no more than declare the effect that the Prime Minister ceasing to hold office would have on the continuity of the Cabinet of Ministers.

It cannot be read in isolation from the aforementioned provisions. It cannot, and does not, confer on the President the power to dismiss the Prime Minister. It is a consequential provision in the same way Articles 47(2) and (3) are. It is not self-explanatory and its meaning cannot be determined except by cross referencing it with Article 46(2). How else does one ascribe a meaning to the word “otherwise” appearing in Article 48(1)?

Should the Sinhala text prevail?

There is a contradiction no doubt between the Sinhala and the English texts. It has been contended that effect should be given to the words in the Sinhala text. Should the Sinhala text of Article 48(1) prevail over the English text of the corresponding article?

There is no sanctity attached to the Sinhala text of the enactment. According to the Nineteenth Amendment, in the event of any inconsistency between the Sinhala and Tamil texts, the Sinhala text shall prevail. It does not say that the Sinhala text shall prevail where it is inconsistent with the English text.

Besides, not every contradiction will give rise to an inconsistency. The inconsistency in the language of the text is the result of a mistake made by the draftsman. When properly interpreted, the apparent inconsistency between the Sinhala and English texts will disappear.

Draftsmen of legislation do make mistakes. The Supreme Court’s decision in Re Transport Board Statute of the North-Eastern Provincial Council SC. No 7/89 (Spl) (PPA/2/PC/19) dated February 22, 1990 provides an illustration of the approach that ought to be taken when interpreting legislation with drafting errors.

List I of the Ninth Schedule to the Thirteenth Amendment enumerates the subjects that come within the competence of a Provincial Council. Under item 8 of that List, a Provincial Council is empowered to regulate the provision of “inter-provincial road transport services”. The Provincial Council for the Northern and Eastern Provinces passed a statute for the provision of road transport services within their provinces and presented it to the Governor for his assent. He refused his assent on the ground that the Council was not competent to make that statute. The Council passed it again and the Governor once again withheld his assent. The President then referred the statute to the Supreme Court for a determination as to its constitutional validity.

The Supreme Court had to answer the question whether item 8 prevented the Provincial Council from passing a statute for the provision of intra-provincial road transport services.

It transpired in the course of the hearings that the English text of the Thirteenth Amendment Bill had been used in the course of its passage through Parliament. The English text of the Bill as gazetted – and as actually used in Parliament – contained the words ‘intra-provincial road transport services ’. Both the Sinhala text of the Bill as well as the Bill containing the Speaker’s endorsement contained the words ‘inter-provincial road transport services’.

It was argued on behalf of the Council that the word ‘inter’ be treated as a printing error. Mark Fernando J held that the use of the word ‘inter’ in the Sinhala text cannot be treated as a printing error because the Bill as certified was only in Sinhala and the text in the Sinhala language shall prevail.

Nevertheless, Fernando J proceeded to hold that the use of the word ‘inter’ was an obvious mistake and that it must be read as if it used the word ‘intra’, thus permitting the Council to pass a statute for the provision of ‘intra-provincial’ road transport services. Mark Fernando J did not regard the Sinhala text of the Third Amendment as determinative of the question because it contained an obvious mistake. In other words, the rule prescribed by the statute that its Sinhala text should prevail in the event of an inconsistency did not foreclose an interpretation that was contrary to the express language used in the Sinhala text.

Further example of erroneous drafting

Another egregious drafting error that went unnoticed was contained in Article 48(2) of the principal enactment, which corresponds to the present Article 47(2). Although not directly relevant to the issue under discussion, it is mentioned here to illustrate the dangers of reading a text literally.

Article 48(2) of the principal enactment provided as follows:

“48 (2) Notwithstanding the death, removal from office or resignation of the Prime Minister, during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall continue to function with the other Ministers of the Cabinet as its members until the conclusion of the General Election. The President may appoint one such Minister to exercise, perform and discharge, or may himself exercise, perform and discharge the powers, duties and functions of the Prime Minister. If there is no such other Minister the President shall himself exercise perform and discharge the powers, duties and functions of the Cabinet of Ministers until the conclusion of the General Election.

The words in italics, if read literally, would give rise to the absurd conclusion that the President could not only step into the shoes of the Prime Minister when the latter’s office fell vacant, but also into the shoes of the entire Cabinet of Ministers! Thankfully, the words in italics have been removed by the Nineteenth Amendment.

Conclusion

The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.

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Latest comments

  • 7
    0

    The President has no longer the Power to remove the Prime Minister. Fine.
    As it stands, Parliament also does not have the Power[ In practical terms] to Impeach the President.This is possible if and only if MaRa lends his support! If he does so it would be sweet revenge: Pani Appa![ Hoppers].

  • 6
    0

    Dr. Reeza Hameed
    I think your well reasoned presentation should put an end to any doubts or speculations on the interpretation as to which statute should prevail in the event of any inconsistency between section 47(2) (3) and 48(1) consequent to the significance arising from the removal of the words in italics by virtue of the 19th.Amendment.

  • 16
    2

    Anyway Gamarala, Sevalaya, mala perathaya, patholaya, Sillysena, Gonsena, is a dangerous bugger. He has mastered everything from his former boss none other than the brutal dictator MR.

    This patholaya should be thrown out at any cost.

    • 1
      4

      Sounds like a barking of a astray dog
      No person with any decency would use an educated forum like this to use such abusive language
      We have heard this type of insinuations when prostitutes around Maradana area fight with each other in public
      This shows nothing but hollow emptiness
      Please do not make this a third grade toddy tavern
      People discuss important things and issues here
      Most people who support Ranil are like this

      • 1
        0

        Pukka Jayanthi,

        Oh this hurts you ha! Good take it the way it is.
        So you are an ardent supporter of Prostititues in the maradana area. How about thummulle wimalaya

      • 0
        0

        People who love MR; love to see his opponents killed by Gota’ sharks, like to see his master’ wealth in Mashreq Bank, taking ransom from Pharmaceutical Companies thereby increasing the Drug prices by 100-500%,wife swindling Innocent Tamil’s robbed gold; Son’ playing with girls, parading in the night with prostitutes around the Dalada Maligawa against the wishes of Maha Sanga …..

    • 2
      0

      HT
      Spot on.
      Patholaya is a total disgrace and tragic figurehead.

  • 4
    0

    “President surrendered his power to dismiss the PM”
    Probably by now President has realized Ranil and Chandrika took him for a ride. Although President has been in politics for a long time he failed to understand their real motive behind choosing him as ‘Common Candidate’. Now he is the most hated person by a large majority of Sinhalayo.

  • 4
    1

    Sound & very informative article Reeza ..

    ———
    Quote:
    Pakistan bars former PM Nawaz Sharif from holding office for life

    • 1
      0

      Boldedash
      Trying drive a point misquoting a constitutional provision
      What argument
      Silly

  • 1
    0

    Aiyo Sirisena

    ╭∩╮( ͡° ل͟ ͡° )╭∩╮

  • 2
    0

    It is misleading to argue, even without quoting in full, that Article 47 (a) of the 1978 (principal) Constitution was repealed by the 19th Amendment and as such the removal of the Prime Minister by the President is not possible. The badly written 19th Amendment undoubtedly has created an ambiguity. But what the Amendment in section 9 repealed was the whole Chapter VIII and substituted it with a new one. It didn’t repeal articles here and there. Therefore, the author’s argument that “The phrase “removal from office” which appears in Articles 47(2) and (3) are now redundant because the power to remove the Prime Minister has been withdrawn from the President” is not valid. Those are in the substituted new Chapter VIII and not the in the principal Constitution or not repealed articles. In a badly drafted Constitutional Amendment, one may argue that they were ‘mistakes.’ But then, another can argue that the absence of a removal clause in the present Article 46 (2) also can be a mistake! In one place it is ‘dropped’ or ‘forgotten’; in two other places it remains. This is in addition to ambiguity in 48 (1) as well.

    • 3
      0

      You say: “But then, another can argue that the absence of a removal clause in the present Article 46 (2) also can be a mistake!” The absence of the removal clause is consistent with the objective behind 19A. It must have been deliberate.

      I did not think it is necessary to quote Art 47(1) in full as I had discussed it in my previous piece which appeared in CT. Besides, the full text is available online.

      • 0
        0

        Dear Dr Reeza Hameed,

        [1] The interpretation of the ‘objective’ behind 19A is largely subjective. Whatever the objective or rather objectives, that/those cannot contradict the main thrust of the Constitution without a referendum, in my opinion.

        [2] If the absence of ‘removal clause’ in 46 (2) is deliberate, then why it is present in 47 (2) and 47 (3)? Is it about ‘copy and paste’ mistake or what?

        [3] Ok, in your case, if you say that you didn’t think it was necessary to quote Article 47 (1) in the old Constitution in full, I am ready to accept it. But do you admit that it could be misleading? You have used double quotes (not single) and also you say the ‘removal clause’ was repealed. We all make mistakes, but I think those two can mislead the reader and give a slanted interpretation in favour of your argument.

        [4] Do you also think that perhaps the great constitutional drafters also must have thought (pun intended) that the absence or not inclusion of ‘removal clause’ in 46 (2) is sufficient, whatever present to the contrary in other Articles like 47 (2) and 47 (3)?

        [5] Do you admit that 19A is a messy and a bad piece of constitutional amendment? Why are you making a one sided interpretation? If an Amendment repeals only certain articles, then one may argue that whatever contradicts that Amendment in other (old) articles are redundant. But when a whole Chapter is repealed and replaced, nothing in it could be considered redundant. That is why I am expressing my strong disagreement.

        Laksiri

    • 2
      0

      You say: But then, another can argue that the absence of a removal clause in the present Article 46 (2) also can be a mistake!”

      The absence of the removal clause is consistent with the objective behind 19A. It must have been deliberately removed.

    • 3
      0

      Laksiri Fernando.

      I read the article and your comment. You have obviously missed the point made by the writer not only in this article but also in his previous article which I have read in the Colombo Telegraph. You cannot expect the author to repeat it all over again or to quote every word from the constitution when writing to a column such as this. The full text of the Constitution is online and any serious reader can have access to it. Besides, the author refers to his previous article which by the way appeared in CT. If you had read that you would not be making this statement.

      If what you say is right, then you will have to argue that the author should have reproduced not only the whole of Article 47 but also the whole of Chapter VII. That cannot be right. In any event it is not the whole of Chapter VII that is relevant to the issue.

      It is quite farfetched for you to say that “It is misleading to argue, even without quoting in full, that Article 47 (a) of the 1978 (principal) Constitution was repealed by the 19th Amendment and as such the removal of the Prime Minister by the President is not possible.”

      Even though I am no lawyer, I have no problem understanding the author’s argument as there is sufficient information about the relevant provisions to understand the point he is making.

      Your statement that section 9 repealed the whole of Chapter VIII and substituted it with a new one does not say anything or make a difference to the point made by the author.

  • 4
    0

    ‘Removal’ of a PM by a President possible with white-vans.

  • 0
    4

    There are other sides to this. I heard even though the 19thmanedment went through the Cabinet. PResident has given Ranil the unsigned copy. So, IT is still in the hands of the president. Can it be enacted without the president’s signature. Secondly, If the amendment is corrupted by drafting. Why some one cannot ask the Supreme courts to make it null and void.I think PResident should be a Powerful president. that is why Mahinda rajapakse HA to be a corrupt president by buying out UNP MPs to make it a 2/3rd govt. PResident sirisena shoud do the same. I heard he practiced just before the NCM. but, that was not enough. ICancel the 19th and strenghten and modify the 18th. THIS AUTHOR SUGGESTS THAT SINHALA VERSION IS NOT IMPORTANT IN A SINHALA COUNTRY AND ENLISH SHOULD PREVAIL. PRESIDENT KNOWS THE TRUTH. IF PRESIDENT CAN NOT DO IT TAKE THE HELP OF MAHINDA RAJAPAKSE. BECAUSE, THE COUTRY IS BANKRUPT AND DEBT TRAPPED NOW. What is important is not money to protect the country which had been invaded and beng man handled and over powered by evangelists nd muslims are askig their share. FORGET RANIL AND UNP. they are uneducated and cunning liars.

  • 0
    1

    For Protestants and muslims this is party time. but, it should not be so. There are nationalist LAwyers in Srilanka. they would have acted if needed. I think, !9th will go eventually. If that is the case, Protestants, NGOs and Muslims are crabs in a boiling pot.

  • 1
    1

    The writer should b reminded that phrases of Law should stand as they are
    If there is any doubt about wrong drafting they have to b corrected legally and not by some one sided interpretations
    19 A talks about the prevalence of Sinhala when there is any inconsistency between the Sinhala and Tamil only because the recognised official languages of this country according to Law
    The writer in order to drive a point based on his loyalty and his imagination is trying to attribute a validity to a misquoted English version disregarding the legally accepted Sinhala version
    No court of law will accept his argument that the legal draftsman has blundered
    He should remember that the passage in law is completed by it being adopted in the original Sinhala version in the parliament
    Someone would have paid some money to confuse the issue in drafting the English in the way the writer is trying to defend the error.
    He should also bear in mind that if the president uses his constitutional powers re the composition and the assignment of functions to the ministries the current cabinet stands dissolved and as a result the PM ceases to hold the position
    He must praise the President for not resorting to such measures
    But now that the parliament is prorogued and in the meantime a cabinet change is going to take place don’t b surprised that it will b a new cabinet and hence a new PM.
    Country can b hopeful of getting a PM instead of one who is hiding behind inconsistencies to continue in the post when the whole country is well aware of the role he played in the great bank robbery
    People who are splitting hairs on legal interpretations have shamelessly forgotten what ethics and principals of good governance are
    19 A is a designed affair rushed through but in the hurry they have forgotten the correct Sinhala version

    • 1
      0

      Jayanthi,

      Sillysena said he will burn down everything before stepping down. Shows how village idiots behave.

  • 2
    0

    Dr Reeza Hameed,

    A well written article, but do you think these buggers will understand this or abide by the law, no way they will bend the law to suit them . Its another lawless country ,a filed state. Patholaya ,Mara ,Gnanasara and goons should be hung by their balls in public for their crime against humanity.

  • 1
    0

    One of the best analysises on the power and limits of the constitution..but I think Sri Lankan politicians do not go neither with letters nor the spirit of the contibtion..
    When then get power they almost lose their heads ..
    Look how m3 has been talking then and how he has changed now .
    He is totally changed now..
    Power addiction…
    He is dreaming for his second term..
    Then for his childrens place..
    So I do not they will read this

  • 0
    0

    We all know that current President is only a scarecrow and LTTE together with Western powers run the country. The joint government of Ranil-Sirisena is on their knees awaiting for instructions from Tamils to run the Country. Very pathetic situation, but public does not know what is happening in the country.

  • 0
    0

    WE always curse UNP and their lot of thieves. that will come. Only way muslims can be happy is expeet that is the verdict of Allah.

  • 0
    0

    This is a minority govt propped up and run by minorities. Take a pause and look around what happened in countries where minorities tried to rule in Asia, Africa, Middle East……………..

  • 0
    0

    MS would have given his nod for the 19th Amendments with Article 47(2) included soon after he was enthroned to the positon of the Presidency. Also he had his grudge over MR having all the powers to remove the PM and dissolve the parliament at any time as the 1978 principal enactment provided. But it has done good to the country.
    However, do we have the chance of harvesting the fruits that regime change gave the country?

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