16 May, 2022

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Removing The President; Is The Opposition Unaware Of Article 42?

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

With every passing day, the demand for the resignation of the President is gathering momentum, becoming more strident, and more widespread, and echoing even beyond the borders of this country. The President’s response has been to secure the resignation of his Cabinet of Ministers while retaining his brother as Prime Minister, and then filling three key portfolios and, bizarrely, one of dubious value. He has chosen to retain for himself the others, including the currently critical functions relating to health, power and energy. The Opposition has responded by collecting signatures for two parliamentary motions. One seeks to express its lack of confidence in the Government, while the other seeks to impeach the President. Both these are clearly misconceived.

 Motion of No-Confidence in the Government

Article 43 of the Constitution states that the Cabinet of Ministers is collectively responsible and answerable to Parliament. Therefore, a motion of no-confidence in the Government, if passed by a simple majority, will result in the dissolution of the Cabinet of Ministers. Thereupon, Article 49(2) requires the President to appoint a new Prime Minister who commands the confidence of Parliament and new Cabinet Ministers. It does not secure the resignation of the President. It does not, therefore, respond to the demands of millions who are demonstrating on the streets of this country.

Resolution for the Impeachment of the President

Under Article 38, a resolution may be presented to the Speaker alleging that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity; or that the President has been guilty of: (a) Intentional violation of the Constitution; (b) Treason; (c) Bribery; (d) Misconduct or corruption involving the abuse of the powers of his office, or (e) Any offence involving moral turpitude.

The resolution is required to be signed by two-thirds of the total number of Members or, if the Speaker is satisfied that the allegations merit inquiry by the Supreme Court, by half the total number of Members. Thereafter, the resolution is referred to the Supreme Court for inquiry and report, with the President having the right to appear and to be heard. If the Supreme Court reports that it has found the President guilty of the charges, Parliament may remove the President from office by passing a resolution to that effect with two-thirds voting in favour. President J.R.Jayewardene famously remarked that in drafting Article 38 he had ensured that it would be virtually impossible for Parliament to remove a President from his office. To attempt to invoke it today, as the Opposition is reported to be doing, is an utterly futile exercise.

 Motion of No-Confidence in the President

Article 42 of the Constitution states that the President “is responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law including the law for the time being relating to public security”. This means that Parliament is entitled, indeed required, to hold the President accountable for the due performance of his powers, duties and functions.

Immediately upon his assumption of office President Gotabaya Rajapaksa granted massive tax cuts, thereby causing a severe reduction of state revenue. He then appointed a political acolyte to the strictly non-political office of Governor of the Central Bank who proceeded to print money with gay abandon. When inflation reached astronomic heights and the value of our currency reached the lowest depths, the President remained mute. His maniacal decision to impose an immediate ban on the use of chemical fertilizer destroyed our agriculture sector and our tea industry. His inability to ensure a regular supply of gas, diesel, petrol, milk powder, and other essential food and domestic items has resulted in causing misery and reduced our people to a state of abject poverty.

Faced with a record such as this, Parliament is surely entitled to hold the President accountable for his demonstrable inability to perform the powers, duties and functions of his office. Is the Opposition unaware of Article 42 of the Constitution? If, upon the passage of a motion of no-confidence in the President, the President resigns, as he should, Article 40 requires Parliament to elect, by secret ballot, one of its Members to hold office for the unexpired period of the term of office of the President vacating office. That election is required to be held as soon as possible, within 30 days of the vacancy occurring. In the interim period, the Prime Minister or, in his absence, the Speaker will act in the office of President.

Restoration of the parliamentary executive

Whether or not Parliament succeeds in securing the resignation of the President, it is now clearly evident that neither a retired middle-level soldier nor a professional politician can carry the full and complete burden of governing this country on his or her shoulder as required by the ill-advised 20th Amendment to the Constitution. It is time to restore parliamentary government which existed in this country for thirty years, from 1947 to 1977, and which was then restored, with unnecessary restrictions, from 2015 to 2020. During that earlier period, a Prime Minister and a Cabinet of Ministers, chosen from, and responsible to, a Parliament consisting of members elected from single or multi-member constituencies, provided stability and security to this country, notwithstanding an attempted military coup d’etat in 1962 and a youth insurgency in 1971. It is time to move the 21st Amendment to the Constitution.

The 21st Amendment

The following should be accepted as a few of the essential features of the 21st Amendment to the Constitution:

* It should provide for the election by Parliament (or by an appropriately constituted electoral body) of a President who shall be Head of State, Head of the Executive and Commander-in-Chief of the Armed Forces. He/She should be a person who had not been engaged in active politics during at least the preceding five years. With few exceptions, he/she should act on the advice of the Prime Minister or, in specified matters, the relevant Minister.

* In compliance with the two fundamental principles of international law: non-discrimination and self-determination, the requirement of power sharing at the centre should be incorporated. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament. Thereby, the minority communities will be constitutionally guaranteed not of token (as, for example, C. Kumarasuriar and Lakshman Kadirgamar) but of genuine representation, both in the legislature and in the government. Policy formation will thereafter be by consensus of the different ethnic groups, which is how it should be in a multi-ethnic, multi-religious and multi-linguistic country that Sri Lanka is.

* It should incorporate the provisions of the international human rights treaties which Sri Lanka has ratified.

* It should provide for election to Parliament from single-member or multi-member (where appropriate) constituencies.

* In keeping with contemporary international developments, it should secure the independence of the judiciary and of the public service by the establishment of a Judicial Council and a Public Service Commission responsible for the appointment, transfer and disciplinary control of Judges and Public Officers (of all levels), with the appointments at the highest levels being made by the President on the advice of these bodies.

* Members of the clergy of all religions should be disqualified from seeking election to Parliament.

* Judges, whether of original or appellate courts, should be disqualified from being appointed by the government to serve on commissions of inquiry while in service or during a period of five years following retirement.

Recovery of stolen assets

It is not surprising that the continuing demands of protesters on the streets that the stolen assets of the country be recovered is being ignored by the Government. The Stolen Assets Recovery (STAR) Initiative is a partnership between the World Bank and the United Nations Office on Drugs and Crime (UNODC). It was established precisely for the purpose of assisting governments in the recovery of assets stolen by political leaders. Its achievements are spectacular. I worked with a STAR team in Egypt following the massive demonstrations in Tahrir Square during the “Arab Spring”. However, it responds only when invited by a government. The present Government is not likely to do so. Neither did the previous “Yahapalana” Government show any inclination in that direction. Are political leaders, whatever their persuasion, protective of each other?

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Latest comments

  • 9
    1

    May I add to Judges – 21st Amendment :
    …Judges, whether of original or appellate courts, should be disqualified from being appointed by the government to serve on commissions of inquiry OR ANY ADVISORY CAPACITY TO ANYONE HOLDING A POSITION OF AUTHORITY IN GOVT OR SERVE IN ANY COMPANY AS A DIRECTOR OR EMPLOYEE.
    This is because two CJs did the above, and evinced conflict of interest.

  • 11
    1

    Dr. Nihal Jayawickrama,
    Doesn’t the Presidential Pardon of a convicted murderer (and, thereafter appointing him a Minister in his cabinet) constitute, an offence involving moral turpitude.
    If it does, wouldn’t that be sufficient grounds for the Impeachment of the President.

    • 4
      1

      NV/Nathan,
      Morning.
      Also, pardoning a person convicted of Murder of a Presidential Advisor, visiting the injured accused in the shooting at Hospital, arranging treatment in Singapore (do not know who bore the cost of operation and visit thereto), after the Pardon appointing him to post of Chairman of government institution!!
      Does all those chain of events, collectively denote moral turpitude??

      • 1
        0

        Mahila

        The list is too long and growing I have simply given up counting their sins.

    • 0
      0

      Even the Naval rating was convicted for assaulting the former Indian Prime Minister, Rajiv Gandhi. But when R.Premadasa assumed office as President, immediately he was released from the prison. Is it not an offence involving moral turpitude.

    • 0
      0

      Has any one of the Rajapaksas taken adequate measures to punish the person who murdered the rugger player Thajudeen.

  • 4
    1

    It’s the will of the people it could be done,
    Even when Gota contested that time no dual cant but another patriotic Desjapriya said that not his buissnes to check……
    Don’t panic the people first thing first this criminal Raja family should out for good
    US should consider this lottery visa system ,if he loose his no way of stepping in US the amount of his track record thats why he make sure he intact his adopted land.

    • 0
      1

      Cugan,
      by any chance have you used the wrong word?
      Is it ‘Deshathrohi’, instead of ‘Deshapriya’??

  • 1
    1

    Thanks very much.
    I hope that it will add a pinch of sanity to the discussions here.

  • 4
    1

    Very good analyis of how Presidnet;s power i absolute which corruots absilutley. This is what has happend, JR laid the foundation. Noe Rajaksas got the taste of it. Thye buy over MPs to reatin absolute power of the President Publich has to wait until Presidnet completes his term of oofice to elect new Presidnet. Waht guyrantee he will be good. Unlees first cahnge the constitution to give the power to the praliment Define educational cnditions on MP. They should delclare their assets annualy while in Office. severe punishment o fr corruption with cindisction of assets. Resplve ethniv issue by giving OC to North and Eat with no powers to the Governor.. Inky one family mmeber can be in the Parliament
    People who elct the MPs are supreme.

  • 10
    1

    Sooner or later …….. Gota will have to fall on his sword.

    I already feel sorry for him …… ahead of time ……… and happy for Lasantha ……. and numerous others …….

    • 4
      1

      nimal fernando

      “Sooner or later …….. Gota will have to fall on his sword.”

      Gota does not have b***s to commit hara-kiri. Hara-kiri is about taking responsibility for their failures, demonstrate their “courage, self-control, and strong resolve of the samurai and to prove sincerity of purpose.”

      If anything Shiranthi will throw him on her kitchen knife or family’s piha kaetta (dagger).

    • 4
      0

      NF@
      From the day one, he entered the office, not even trivial issues were settled by him. Sorysena did it. CBK did it to the best, Mahinda did it… but apolitical candidate brought to usher magical changes under ” one law, one nation” – ended up being recording breaking loser. Even little ones call him today ” pissek”… ” a mad man” ” a egregious fool” etc.
      To the very same manner they overestimated their so called war victory, they thought of fooling the nation in the line of so called magics done in COVID containment. But the truth is… they were not the ones who eliminated the LTTE terror. It was connected with collective efforts of various communities and civil organisations. And the fact that MaRa was almost like a dog, that should have been draged to get a shower – was seen in his efforts standing against the brutal war… was reminded by some powerful monks yet today. –
      Now, MaRa s face is slowing revealing to the nation. His FAKE patriotism is coming out of his pretended acting.

  • 2
    1

    NJ,
    “Is The Opposition Unaware Of Article 42?”
    Or are they trying to do a RW, covering up with the excuse of MS?
    That is the relevant question!!!

  • 2
    1

    In our lifetime we have had food being rationed, people standing in long queues, shortages, and austere times in Sri Lanka….but never have we seen days of no fuel, gas, no milk for the babies, queues where people haves to stand overnight to get their basic needs, and hours of electricity cuts, among other unacceptable situations. We have never seen people suffer to this extent. All because we have an incompetent government filled with members of one family, their cronies, pardoned felons, war criminals, and never have we had such failed idiotic policies, that have resulted in the situation we are now in. Other nations in Asia have gone through this Covid pandemic, and their economies have taken a bit hit too, but it is only Sri Lanka that has sunk to the ground, broke, and desperate, and people have no idea, if they will get relief. Until all these scoundrels who have mismanaged this country leaves, we will never be able to have any relief.

    Maybe Nirupama and the Rajapaksa boys can sell their ill gotten assets and bail us out.

  • 1
    0

    NJ,
    Thanks, for well written and opportune article, to tickle the brains mostly in slumber!!

  • 2
    0

    “Is the Opposition unaware of Article 42 of the Constitution? “

    good lord no.It is aware but wants to climb the ladder without stepping on it first.

    I wonder why this article was not used when lalith and gamini tried to impeach premedasa?

    • 1
      0

      Nihale,
      A crisis always provides an opportunity to do innovative things unlike normal times !
      Think out of the box !

  • 2
    0

    Dr. Nihal Jayawickrama,

    You have included power sharing at the center, but omitted to mention power sharing at the periphery.

    Was it deliberate or intentional?

  • 3
    0

    The Governor of Central Bank have asked Sri Lankans in abroad to help Sri Lanka by donating dollars and promised that this money will be used only for buying essentials and not for other purposes. It is time for Sri Lankans to contribute to the country and its people to save the people and make changes to the constitution. but the problem is that his will be used by Rajapaksas as their own victory and still the governor of Central Bank is not an independent person and he has to follow the order of a military dictator if the help goes without conditions. So far, Rajapaksa family have not spend a single penny for this country and they should first give up all their assets in Sri lanka and other countries to the country immediately. President Gotabaya and his Government has to immediately remove the 20th amendment and get rid of executive presidency with a constitutional amendments.

  • 0
    0

    Sad to say that we had a golden opportunity to do away with the Executive Presidency CBK’s tenure which was blocked by the UNP in Parliament. Now it has become a deep sore.

    But coming back to current Galle Face protest – it is the reason for a long standing accumulation of the bitterness that people have endured over the years under each rule. They have been taken for granted to enrich those in power at the expense of the masses. This realization has been long overdue. However, the protesters at Galle Face need advise and guidance from people Like Dr. Jayawikrama to make meaning out of the the build-up which otherwise could end up in a stalemate much to the disappointment of the masses and likes of the people in government. In fact this is a unique and rare opportunity for all like minded people to ensure its success.

    • 0
      0

      That was because CBK tried one up the sleeve when she added a clause to perpetuate her future.

  • 0
    1

    All, with the exception of AKD and Sajith (and possibly Gammanpila and Weerawansa), are caught up in the Mafia Corruption Industry…….Ranil and Harsha at the helm! There’s no other explanation. From international bodies waiting to prosecute them, to cartels waiting to torture and blow them up, Motherland’s hard earned money is being held at hostage by these high-level Crooks.

  • 1
    0

    If the Article of Contstitution provdides such a facility to remove the present President ,with a simple majority in Parliament; Why not Dr Nihlal Jejawikcrema canvas or help on this matter to the leaders of the opposition parties to bring a motion to remove him from office. This initiative would not only help the majority of the citizens who are fighting against the Rajapakas cronie’s abuse of power,but, also punish them legally before its too late.

  • 0
    0

    Neither a No-Confidence Motion nor a Resolution for the Impeachment of the President is on the agenda of the millions who are demonstrating on the streets of the country.
    Those Millions need a brand New Slate………………..

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