By YLS Hameed –
With the no confidence motion having been defeated, the new issue that has cropped up is whether the six SLFP Ministers who voted for NCM should be removed from the Cabinet. The fact that the UNP is very serious about the removal of these six Ministers is amply manifested in the handing over of a no confidence motion against them by UNP backbenchers.
The six Ministers are reported to have said that they have already written to the President expressing their willingness to step down from the Cabinet. Naturally it is unethical for them to continue in a Cabinet in which they have expressed lack of confidence.
In the meantime, the Prime Minister is said to have instructed the backbenchers to withdraw the Motion as it was not approved by the Party. All these moves seem to be manoeuvred to exert pressure on the President to agree to the removal of these Ministers since the President, it is also reported, is unwilling to remove these Ministers.
In this regard, two aspects need to be considered. One is political and the other is legal. Both the UNP and the SLFP have agreed to continue with their political marriage. President therefore has every right to insist that they continue in the Cabinet. But the question that will cry out for an answer there is how the President, being the head of the Cabinet sit with Ministers in the same Cabinet when the very Ministers have already declared their lack of confidence in it. Wouldn’t it sound ludicrous and reflect badly on the President?
The next is the legal position.
Appointment of Ministers
Article 43(2) of the Constitution ( 19th Amendment) States, “The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries……”
It is clear from the above provision that the President cannot appoint a minister on his own except on the advice of the Prime Minister.
Removal of Ministers
Article 46(3) states, A Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers and a Deputy Minister, shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function…….. unless he-
(a) is removed from office under the hand of President on the advice of the Prime;
Here, power of removal is vested with the President. But to decide as to who should be removed is a matter not for the President but for the Prime Minister. In other words, the President cannot remove a minister on own except on the the advice of the Prime Minister.
The pivotal question here is whether the President can reject the advice tendered by the Prime Minister with regard to the removal of a minister. The president cannon do so because the only instance where the President can remove a minister is when the Prime Minister tenders such advice. Hence the President cannot have a discretion on whether to act on the advice of the Prime Minister or not.
Therefore the President is in effect a kind of non- executive president with regard to appointment and removal of Ministers after the 19th Amendment.
Assignment of subjects and functions of Ministers
Article 43(1) reads as follows, “ The President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of the Ministers of the Cabinet of Ministers and the Ministries the assignment of subjects and functions to such Ministers.”
Here, the power of determination as to the number of Ministers, Ministries, subjects and functions is vested with the President. The President may consult the Prime Minister only when he considers it necessary. Therefore it is subjective. This consultation is meant for situations where a coalition government is formed. Since it is only consultation the president is not bound to act in terms thereof legally though political reality may warrant heeding of the outcome of such Consultation.
Change of subjects and functions of Ministers
Article 43(3) enacts that The President may at anytime change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.
This provision confers powers on the President to change the assignment of subjects and functions of the Ministers at any time he wants. He may or may not consult the Prime Minister.
Therefore it can be said that the assignment and change of subjects and functions are a discretion of the President.
Change of Composition of Cabinet of Ministers
When a question as to whether the Prime Minister could be removed by the President arose recently, some relied on the above Article to support the position that the President could do so. They argued that since the President had the power to change the composition of the Cabinet, he could remove the Prime Minister.
What was lost in their arguments was that the continuity of the Cabinet of Ministers would not be affected by such changes and according to Article 46(2),the Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function. Therefore in terms of Article 43(3), the Prime Minister cannot be removed.
Now the conclusive question here is, whether, in order to change the composition of the Cabinet, the President can remove or appoint a minister. The answer is that the sub Article 43(3) should be read subject to sub Articles, 43(2) and 46(3) which require the advice of the Prime Minister to do so.
It can therefore be concluded that if at all the President is to allow the six SLFP Ministers to continue against the Prime Minister’s advice, that may be in terms of their political marriage and not in terms of law.
However. It will be infra dig for the President to sit with them in his Cabinet.