By Reeza Hameed –

President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister.

At the press conference held on 27 October 2018, as reported in Adaderana (‘GL explains how PM was removed and why Parliament was prorogued’, October 27, 2018), Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are: 

1. The cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1). 

2. The President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Dr Peiris is ‘compulsory removal’.

What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.  

The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office.  

If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant. 

President cannot remove the Prime Minister

The President has no power under the Constitution to remove the Prime Minister from office for the reasons which I adumbrated many months ago in opinions expressed, inter alia, in the Financial Times. Colombo Telegraph. (See ‘The President Cannot Remove the Prime Minister’, February 20, 2018 and ‘The President is Powerless to Remove the Prime Minister’, April 13, 2018. I do not wish to repeat those arguments here as they are easily accessible online. 

Suffice it to say that, since the enactment of the Nineteenth Amendment to the Constitution, the President no longer has the power to dismiss the Prime Minister. The Nineteenth Amendment reconfigured the balance of power between the President on the one hand and Parliament and the Prime Minister on the other, making the Prime Minister’s continuance in office dependent on the confidence that Parliament has in him rather than that of the President. 

In his letter to the Prime Minister he wrote on 26 October 2018 the President did say that he had removed the Prime Minister acting under Article 42(4). The words he had used were ‘ivath karana ladha’. 

Article 42(4) of the Constitution says only that 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. It does not empower the President to remove the Prime Minister. Indeed, the Pre-Nineteenth Amendment version of the constitution expressly provided in Article 47 that the President may remove the Prime Minister from office, but that power was repealed by the Nineteenth Amendment. It is patently absurd to pretend that the power to remove the Prime Minster had, after it was repealed, had somehow ended up inside Article 42(4). It is evident that it is to overcome this difficulty that Dr Peiris relied on section 14(f) of the Interpretation Ordinance.

Section 14 (f) of the Interpretation Ordinance

The President’s power to remove the Prime Minister was expressly provided for in the 1978 constitution but it was taken away by the Nineteenth Amendment. That power cannot now be restored by relying on the Interpretation Ordinance. If it was intended that the President shall continue to enjoy this power, then it does not make any sense for this power to have been taken away by the Nineteenth Amendment. The President has in effect tried to grab with one hand what has been taken from the other. 

Dr Peiris has stated that the President, as the authority having the power to appoint the Prime Minister, also has the power to rescind that appointment. Dr Peiris has sought to derive this power, which does not exist in the constitution, from section 14(f) of the Interpretation Ordinance. The powers of the President have to be determined from the provisions of the constitution and not discovered from the Interpretation Ordinance.

Apart from the fact that the Constitution does not admit to the application of section 14(f) to interpret the relevant provisions, to read the words of section 14 (f) into the Constitution would lead to absurd conclusions. This would become apparent if one looks at the wording of section 14(f). It is provided in that section that “for the purpose of conferring power to dismiss, suspend, or re-instate any officer, it shall be deemed to have been and to be sufficient to confer power to appoint him.” It would mean that the President may not only dismiss the Prime Minister, but also suspend him; but that cannot be right.

Did the Prime Minister automatically go out of office?

Dr Peiris’ principal contention though is that following the withdrawal of the UPFA from the National Government the cabinet “no longer existed. When that cabinet went out of office, together with it went the Prime Minister. So, you have to start on a clean state”. In other words, according to Dr Peiris, the withdrawal of the UPFA has had the automatic effect of bringing about the dissolution of the Cabinet of Ministers, and with it a vacancy in the Prime Minister’s office.

He has constructed this argument relying on Article 46 of the constitution. Art 46 (1) states that the Cabinet of Ministers shall have no more than thirty in number; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty. 

This numerical limit was inapplicable to the cabinet of ministers of the National Government which was formed in 2015. Once the UPFA informed the Speaker of Parliament that it withdrew from the National Government, the numerical limitation set out in the Nineteenth Amendment Article 46(1) came into play. As the cabinet had more than thirty ministers at the time of withdrawal, the cabinet went out of existence. Just like that.

Article 46(2) stated that 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…” Therefore, the Prime Minister’s office became vacant when the cabinet of ministers ceased to function.

It is my submission that the automatic effect that Dr Peiris ascribed to the withdrawal of the UPFA from the unity government has no constitutional basis. Nowhere in the constitution is it stated that the discontinuation of the National Government shall result in the dissolution of the cabinet of ministers. Furthermore, there is nothing in the constitution to suggest that the effect of exceeding the maximum number in the cabinet would be its dissolution. The cabinet was still in existence and was functioning until two days ago, presumably with more than thirty members at the time. 

When does the Cabinet stand dissolved?

The constitution dictates that the cabinet of ministers shall continue to function until it stands dissolved in terms of the constitution. Article 48 says when a dissolution of the cabinet of ministers may occur. It is important that I reproduce Article 46(2) as it is pivotal to what has been argued in support of the President’s actions. 

“Art 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.”

The cabinet shall also stand dissolved upon the rejection of the Statement of Government Policy or the Appropriation Bill or passing a vote of no-confidence in the Government [see Article 48 (2)]. 

None of the events referred to in the aforesaid provisions has happened.

The country, until two days ago, had a Prime Minister in office who commanded the confidence of parliament, which he had demonstrated not long ago by having a no confidence brought against him defeated in parliament. Apart from the fact that there was nothing to show that Ranil Wickremesinghe had lost parliament’s confidence, the President by proroguing parliament has prevented Ranil Wickremesinghe from demonstrating that he still enjoys parliament’s confidence. According to the Speaker, The President had failed to consult the Speaker before a decision was made to prorogue parliament, which by convention the President should have done.

The withdrawal of UPFA from the National Government might have resulted in its collapse but it cannot result in the automatic dissolution of the Cabinet of Ministers. If, because of the withdrawal, the Cabinet was left with more than thirty members, then the President should have called upon the Prime Minster to reconstitute the Cabinet and to bring it within the permitted number. Perhaps, the Prime Minister might have on his own motion taken such action had he been given prior notice of UPFA’s decision to withdraw.

The constitution does not declare that the cabinet shall stand dissolved if its number were to exceed thirty. 

This would become apparent when one considers what Article 47. Article 47(1) says that notwithstanding the dissolution of parliament the cabinet functioning immediately prior to  the dissolution of parliament “shall, notwithstanding such dissolution, continue to function and shall cease to function upon the conclusion of the General Election and accordingly, the Prime Minister and the Ministers of the Cabinet of Ministers, shall continue to function unless they cease to hold office as provided in sub paragraph (2) or sub paragraph (a) or (b) of paragraph (3) of Article 46 …”.

It is clear from this provision that the cabinet of ministers which was functioning immediately prior to the dissolution of parliament shall continue to function until the conclusion of the general election. 

To illustrate this provision, let us suppose that the President dissolved parliament under Article 70 (1) Proviso, “four years and six months from the date appointed for its first meeting…” Let us suppose further that at the time of the dissolution of parliament the National Government was still in office but soon after the dissolution, the UPFA withdrew from the National Government. Then, by Article 47 (1) the cabinet would continue in office even after the withdrawal, and despite the cabinet having more than thirty members at the time of such withdrawal. It is specifically provided that the cabinet shall continue in office and that the Prime Minister himself shall continue to function unless he resigns from office under Article 46(2)(b). It cannot be argued that the cabinet would stand dissolved or that the Prime Minister would cease to hold office simply because the numerical limit in Article 46(1) has been exceeded because one of the constituent parties of the National government withdrew from the government. In this scenario, the President may call upon the Prime Minister to comply with the numerical limits imposed by Article 46(1).

Likewise, the cabinet of ministers does not cease to exist merely because the National Government collapsed before the dissolution of parliament leaving the cabinet having more than the number of members permitted by Article 46(1).

It should follow that the effect sought to be derived by Dr Peiris from the withdrawal of UPFA from the National Government on the continuance in office of the Cabinet or the Prime Minister has no constitutional basis. 

Article 47(1) provides further evidence that section 14(f) cannot be called in aid to invest the President with power to dismiss the Prime Minister which the President does not possess, as Dr Peiris has sought to do. Otherwise, it could be employed by the President to override the express provisions of article 47(1) to dismiss the Prime Minister after parliament has been dissolved, even though the expressed intention is that the Prime Minister shall continue in office until the conclusion of the General Election, unless of course he resigns from office. 

Conclusion

In conclusion, it is submitted that Dr Peiris’ arguments have no constitutional basis. The President’s actions were clearly unconstitutional.