By Narangoda Amarasena –
Recent change of government has created a turmoil in the country. I am of the opinion that the President would have prorogued the Parliament and during the prorogation period sought the opinion of Supreme Court about the constitutionality of removing the Prime Minister, appointing a new Prime Minister and a new Cabinet of Ministers as provided in Article 129 of the Constitution. Meanwhile the following text may explain the constitutionality of the issue in my point of view.
Article 30 (1) – There shall be a President of the Republic of Sri Lanka, who is the Head of state, Head of the Executive and of the Government, and Commander-in-Chief of the armed forces. He/she is elected by the people for a term of 5 years.
The President have the powers, inter alia;
1. to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament by Article 33 (2) (a),
2. to preside at ceremonial sittings of Parliament by Article 33 (2) (b),
3. to summon, prorogue and dissolve parliament, Article 33(2) (c). Prorogation is subject to the maximum of 3 months as per Article 70 (3). However, the President cannot dissolve the parliament until the expiration of 4 and ½ years from the date appointed for its first meeting or the President is requested by a resolution passed by not less than two-thirds of the whole members of the Parliament as per Article 70 (1). Also, he may dissolve the Parliament subject to the Article 48 (2).
There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic – Article 42 (1).
The Cabinet of Ministers shall be collectively responsible and answerable to Parliament – Article 42 (2).
The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers – Article 42 (3).
The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament – Article 42 (4).
Now the question arises if the President can remove the Prime Minister so appointed?
The President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers – Article 43 (1). Here the President has discretion in consulting the Prime Minister.
The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined – Article 43 (2). Here the President has no discretion but get the advice from the Prime Minister before appointing the Ministers.
As per Article 43 (3), the President may at any time 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.
The total number of Ministers of the Cabinet of Ministers shall not exceed thirty – 46 (1) (a); and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty – 46 (1) (b). When the parties form a National Government, the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by Parliament. However, the Constitution is silent whether this number is to be reduced when the coalition parties withdraw from the National Government. In any case it is clear that the Cabinet of Ministers will not be dissolved automatically when the coalition parties/independent groups withdraw from the National Government at any time.
In terms of Article 46 (2), The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he:
(a) resigns his office by a writing under his hand addressed to the President; or
(b) ceases to be a Member of Parliament.
Up to now Prime Minister Ranil Wickremasinghe has not resigned and Cabinet of Ministers is not dissolved and accordingly a question will arise who the legal Prime Minister is now. It would have been better if the matter was referred to the Supreme Court for interpretation of the provisions of the Constitution if there is any ambiguity.
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 under the provisions of the Constitution unless he:
(a) is removed from office under the hand of the President on the advice of the Prime Minister;
(b) resigns from office by a writing under his hand addressed to the President; or(c) ceases to be a Member of Parliament.
It means the President cannot remove the Prime Minister from the post. However, under the powers (Article 43 (3) vested in the President he can change the subjects, functions and composition of the Cabinet of Ministers without affecting the continuity of the Cabinet of Ministers and their responsibility to the Parliament. Dissolution of the Cabinet of Ministers will take place as provided below.
1. As per Article 48 (1) On the Prime Minister ceasing to hold office by death, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers.
Provided that if after the Prime Minister so ceases to hold office, Parliament is dissolved, 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 the powers, duties and functions of the Prime Minister, and the provisions of Article 47 shall, mutatis mutandis, apply.
2. As per Article 48 (2) If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers.
Accordingly, it appears that the removal of the Prime Minister and appointing a new Prime Minister is not ethical and constitutional whatever the ambiguities in the Constitution. Showing the majority in the Parliament by any party is not necessary at this juncture unless there is a vote for some other matter.
As Prime Minister Ranil Wicremesinghe will never step down, the joint opposition together with the support of other parties would have defeated the appropriation bill or brought forward a no-confidence motion successfully for dissolution of Cabinet where the Presiden can either dissolve the Parliament or appoint a new Prime Minister. In this context, JVP that supports Prime Minister Ranil Wicramasinghe presently cannot oppose such a motion.
This President and government came to power in 2015 with a load of promises on good governance, elimination of corruptions and development of the country and many more. President gave many promises on the Executive Presidency and his intentions on the 2nd term. The President and the National Government have failed to keep such promises. Government’s popularity has eroded very badly during the past 4 years. Personally, Prime Minister Ranil Wickremaeinghe’s economic policies, pro-western and anti-social approaches, control of government by his friends and specially his behaviour in and outside Parliament and his attitudes toward the party members had resulted in losing the support from the party members in particularly and general public in general.
President Maithripala Sirisena’s first term is due to expire at the end of 2019. His willingness to contest for the 2nd term against his promises given in 2015 has become the main issue to the country now. But he will surely not become a joint candidate nor get the support from other parties than Sri Lanka Freedom Party (SLFP). According to the current situation, after his term ended most of his supporters including MPs appointed through the list will join either Sri Lanka Podujana Peramuna (SLPP) or United National Party (UNP). When compared with the local government election results this year, he may not get even 1% of the total votes if he contest from SLFP. His supporters who are members of the Parliament presently may not be elected in the general election if they contest from SLFP. Apparently, they are aware of this situation and truth. Accordingly, it appears that the President had inspired his party ministers and supporters to discuss with Ex-President Mahinda Rajapakse and his team to topple the government unconstitutionally with the promises to appoint him as the Prime Minister and to nominate President Maithripala Sirisena jointly from SLPP and SLFP for the Presidency next year as his 2nd and last term.
Anyone who regularly observe both print and electronic media may perceive President Maithripala Sirisena as the most unpopular President due to his broken promises and ever-changing policies and speeches. By joining hand with the President at this juncture, Ex-President Mahinda Rajapaksa may succeed only in their short-term intentions but not the long-term ones and gradually lose his popularity earned so far. Further, this move may tarnish the plans and hopes of Ex-Defence Secretary Gotabaya Rajapaksa to contest the next Presidency. He had already run half of the race successfully while gaining popularity amongst the intellectuals and general public.
From all these facts, it appears that the President has created the current turmoil in the country for his personal interests.
*Narangoda Amarasena, Attorney-at Law