18 July, 2018

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Removal Of Six SLFP Ministers -The Legal Position

By Y L S Hameed –

Y L S 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.

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Latest comments

  • 2
    3

    Mr. Hameed: LAw and the law implementation are two different things. IT is like My car My petrol and the way I want it. system is as good as long the implenting it are good. Otherwise, there is no rule of law inside the Palriament. IT is just Hogs, cattle, chicken playimg inside. After the election voters become dogs. elelcted become HONORABLE bull $shit talking Criminal and Fraudsters. You people are bringng hair splitting arguments but you do not want to understand you are explaining how criminals and fraudsters can do it.

  • 1
    4

    Parliament does so many things unconstitutional and illgeal. SO, no point of talking about there work. IF you were careful just after the presidential election, UNP should have been locked in the Police jail. IT is a palce for Criminals and Frausters. LAw does not apply. Every thing is theirs and My way and our way.

  • 3
    1

    The NCM on the six ministers has been withdrawn. Panic over.
    Had the NCM been carried, the Magnificent Six would have said “We will resign if MS tells us to”.
    Obviously there was the usual horse trading.

  • 4
    0

    Y L S Hameed,

    You are raising some very interesting points. However it seems none of your points will actually matter since it seems that RW is not interested in removing the 6 rouges.

    Now that is something very interesting. RW seems to be using the power of forgiveness to deal with the people who wished him the worst.

    Over the years I have observed (just as many of you may have too) that RW is never perturbed by anything and often remains ice cold at most trying times. Not just ice cold, upon his troubles he chooses the right line of action putting wisdom, kindness and fair play into action. He never takes revenge either. Is there a side of RW that we do not appreciate?

    Everyone goes to RW to take refuge in times of trouble, but they seem to conveniently forget his help when it is convenient. Such is the caliber of politicians and citizens we have in SL and the order of the day generally.

    Buddhism teaches us, there is no weapon grater than kindness and compassion when dealing with our adversaries. Could RW be a good Buddhist or could he be doing these things out of weakness or ignorance?

    But then again, if he is weak he would crack under pressure, and if he is ignorant, he would not have those saintly qualities in him. I just wonder if it is possible that RW is grossly misunderstood by most Sri Lankans? I just wonder…

    • 1
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      L.
      V good observation.
      A squeaker.

  • 0
    0

    Do not worry, people are all eyes on both President & Mostly on PM ,
    Ranil will really have to prove that he has the Iron in him to decide in matters like this

    If he fails to stand stern & use an iron fist when and where it is needed ,the he is no leader sane goes to The President.

    They both will need to step down.

    If they can not handle the pressure of doing what is right & not politically right then They should first abolish the executive Presidency and appoint two honest and Able joint PMS from. both main parties and both the PM and President can instead become Mentor Ministers.

    They need to have the Iron in them to prove to the people that they are in charge.

    People are in utter confusion ,
    The government does not have a proper officially appointed spokes person ,every Tom ,dick& harry says what they want ,one contradicting the other , goodness what a comedy of errors this once reputed parliament has turn to.

    This is a very good acid test for both leaderships.

    Let’s see if they both can agree and muster the courage to at least use this final opportunity to prove to the people that they have the Iron in them to rule a Nation in such a chaos .

    Within these three months people will know who will take over the country by 2020 & what will happen to some of the present government ministers when it happens and also will taste the bitter regret and the repercussions for not changing the constitution completely ,they will pay a heavy price and the people who are desperate with no choices left will elect willingly or unwillingly whoever the other leaders left beside present if they fail and yes its the people who will be at the receiving end.

  • 0
    0

    Mr Hameed if you don’t mind please read article 48(1) both Sinhala version and English
    You will see the variances and also the hidden clause about the removal of the PM from office in the Sinhala version
    You are aware that according to Law it is the Sinhala that is accepted

    • 2
      0

      R.
      Probably the Supreme Court should get involved about this.
      There are three different versions. Three languages involved. What kind of Law is it when an only Tamil or English speaking person cannot understand what is written in the language he or she understands?
      English version should be given preference as it is the universal language.

  • 1
    0

    Irrespective of whether Ranil wants to remove those SLFP members in the government who voted for the NCM, no self-respecting individual with iota of dignity will wish to remain in the government, leave alone ministerial position. Only shameless person will do so. Such are the caliber of some of our parliamentarians.

  • 1
    0

    Irrespective of whether Ranil wants to remove those SLFP members in the government who voted for the NCM, no self-respecting individual with iota of dignity will wish to remain in the government, leave alone ministerial position. Only shameless person will do so. Such are the caliber of some of our parliamentarians.

  • 1
    0

    your interpretation of the law is incorrect. on the advice of the PM does not mean – as instructed by the PM. it means after comsulting the PM. we are not the UK where the queen appoints ministers on the advice of her PM. we have an executive democratically and directly elected by the people. Just as the queen may disregard advice of her PM, our president may do the same

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