27 September, 2020

Blog

Sacking Of PM Is Unconstitutional

By Reeza Hameed

Dr. 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.

Print Friendly, PDF & Email

Latest comments

  • 8
    22

    It is something that had to be done earlier than this. this is a very heroic decision that the President took. Removed one of the most -Anti sinhala, Anti Srilankan, anti buddhist PM.

    • 0
      1

      Sirisena’s reasons for ousting Ranil is a load of bullshit.

      He just wants a second term ………. and he doesn’t want to run against Ranil. ……….. Simple as that.

      The moment Ranil – like a true gentleman – informed him way ahead of time his intentions ……. he brought a no-confidence motion to ouster Ranil …….. months before any of this trumped up conspiracy charges to murder Sirisena and Gota …….. was thrown up

      If Sirisena’s reasons are what he has given ………… then he has to answer why he brought the no-confidence motion months before …….. people should pin him down ……. he can’t have it both ways.

      This is just plan B ……….. Sirisena, Ranil or Mahinda …….. I hope Lankans have the courage and the honesty to call a spade a spade.

      Lanka does not belong only to the entrenched political-class ………. it belongs to all the 22 million citizens

      This constitutional coup is a clear violation of every citizens right.

    • 1
      5

      Well said mate…

    • 5
      2

      Like MR took advice from an astrologer to have elections Gamarala has taken legal advice from the Mahanayake to remove a sitting PM.
      This country is cursed as long as skinheads keep giving political advice.

    • 3
      1

      JD
      Even if the Prime Minister is Anti-Sinhala, Anti-Sri Lankan and Anti-Buddhist, the President still has to follow the correct procedure to remove him from office.

  • 6
    4

    M&s has done this with support of MR and co.
    So; it is done under duress.
    M&s has been forced to do this ..
    I wonder if M&s understand all these legal interpretation on constitutional law..
    Dr Peris has been manipulating for a long term . .
    MR will never let M&s to contest next election ..
    MR will teach M&S a good lesson soon .
    Drama will end soon

    • 5
      1

      Hmm… strange.

      The near-omnipresent Sinhala Man in CT blogs abruptly vanished once white-van possibilities reemerged!

      I cannot but wonder if he now regrets having disclosed personal identity in such haste – and thus fears voicing sincere thoughts about the rogues on one side or the other.

      My most sincere prayers for your safety Sinhala Man- hereafter don’t discount the merits of foresight so easily.

  • 5
    2

    Early 2000 Ranil spread a story that Karu was an army deserter and that he made money in some commercial deal( this kind of slander is typical of Ranil and his Royalist clique) This was when Karu was challenging Ranil for UNP leadership.

    It was all published in the weekend paper Sunday Leader run by then Ranil follower and UNP ministerial aspirant late Lasantha Wickramatunga ( ref Leader copies of that time) . Ranil also planted similar stories about his enemies including Nivad Cabrall in the Leader paper.( ask Lal Wickramatunga for the source of the stories) Former policeman (SI) Lal Wickramatunga was appointed as an Ambassador by Ranil in 2015

    Karu later left the UNP with several, including GL Peiris, Rambukewella ,Moragoda SB and son in law Navin Dissanayake to join Mahinda Rajapakse who was then President.

    Now Karu and Navin Dissanayake have become the saviours of Ranil.

    How the wheel turns for Ranil and everybody else !

  • 4
    4

    The president has right to dissolve the cabinet once grand coalition collapsed. When the cabinet goes prime minister goes too. The president can name a new PM of his choice now. When the opens parliament new PM needs to pass the confidence motion if it arises. It is simple as that. So wait and see. Even the MR looses confidence motion, the president definitely will not appoint Ranil again. Because even UNPers hate him. This best time get rid for ever.

  • 4
    4

    Every lawyer has their own opinion. But the reality is RW is not PM any more. He will not get support from people from his party. So many of them wants get rid of him. they know UNP can’t do anything as long as RW is their leader.

  • 2
    4

    Reeza Hameed,

    It may be correct G. L. Peiris’ argument has no much constitutional basis. But that does not prove the removal of Ranil Wickremesinghe is unconstitutional. Yes, you wrote two articles in February and April that the President cannot remove the PM. But I disputed them even then. You must have had on and off thoughts like some others that the 19th Amendment has turned the executive presidential system into a Westminster system. But that is not the case. You also have shown in some other articles the powers that remains with the President. It is under those powers that RW is removed. But the President is not obliged in his dismissal letter to give details. Let me ask you very directly whether your following statement is correct.

    “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.”

    Is it a constitutional interpretation or your wish? Who constitutes the Cabinet? The Prime Minister or the President?

    • 0
      0

      Mr Fernando,

      I am not the writer of the article.

      But my question is – if president has the power to sack his PM that way, why on earth we have elected that many parliamentarians through election. As is the case with constitution – parliamentarians are the ones that represent the people. Just because President believe him being under Assasination threat, without being investigated, to put him in that danger ? My gosh… you as one to have lived in several powerful conuntries, but not to have gotten the basics of democracy is not clear ot me here.

      Besides, President should be able to prove the facts about the PM.
      Sure, they had no good chemistry from the bbegining on, but we knew that Mr Sirisena was not a straight forward man when it goes to react as president.
      Be it with on going investigations or others, he was like bit backwards. Alone those statements, that he got to know them from NEW SPAPERs .. all proved to the world about his capablities.
      Alone bond scam was not a direct failure of PM. Beside, it has now been under investigation. And truly saying you yourself know MR s administration was alleged to have made even far worst losses, but none of them were properly investigated due to the direct interference of Mr Sirisena. He could talk nice but those who knew it know that Sirisena was behind protecting Rajapkshes.
      There, RW ws helpless. Even if he had been attacked that publicly, he has never uttered a single word against him. No public statments were there, that UNPrs publicly criticised him.
      It was the real gentleman nature of RW I would say. And just focusing on the fatal incident of Dematagoda yestreday see, how those mobs attacked Arjuna Ranajatunga and his guards. That costed a life. But no such incidents were reported during 3.5 years of RW rule.
      There looking back, I salute RW thousand times even today.

    • 0
      0

      Laksiri
      Now you have got the endorsement/honer from KA Sumanasekara (mind you, you dragged Batalanda to address RW in a manner like KA S does), in a comment by KA S below, now you are classed with GL P, DJ, and if needed mere Dr Mervin Silva. Sorry I can’t resist.

      Shame

  • 3
    1

    Mr. Hameed, do you know what the foriegn Embassidors said to PM RW when they met him recently – they said, still we consider and confirm you as the constitutionally and legally elected PM and all sides should respect the constitution of SL, and resolve this issue as per it. So that’s it, the world is minutely watching, every moment of it, and taking good note of it for future actions. They would clearly and carefully analyse all actions and conducts of all the actors of this unwanted man made chaos and crisis. If all of them not adhering to the good and decent nationally and internationally established good norms and behaviours. there going to be lot of terrible consequences. There going to be travell and financial bands, even haul into the ICU for the crime of obstructing, destabilising the normal function of a nation, and illegally crabbing power.

  • 2
    2

    Nineteenth Amendment to the Constitution was cohered upon Sirisena under duress (a national and international crime). It is not yet written in gold, because of the short time span (takes about a decade of success before it becomes legit). If Sirisena disregards it now, it is within his executive rights and powers.

    Reconfiguring the balance of power between the President on the one hand and Parliament and the Prime Minister on the other is an obvious and illegal ploy to undemocratically pull power away from the nationally elected president. It is based on undemocratic foreign involvement and investment which has little to do with the people’s rights, but the rights of a small section of elitist Lankan society, and foreign interference in our sovereign rights.

    Making the Prime Minister’s continuance in office dependent on the confidence that Parliament has in him, rather than that of the President, is tantamount to bribery and corruption by participants, and far removed from the democratic rights of the people.

    President not having executive powers to remove those he appointed is the biggest oxymoron of all. The president is president because he was nationally and democratic elected by the people. Indeed, it is the president who should have the confidence of the parliament because they represent the people that voted him in. Ranil was only voted in by the Colombo district. His level of power, for the sake of democracy of the rights of the masses, is a nonentity. He is only there to suggest and give direction, with the ultimate vetoing power by the president (with a percentage give and take for power-balance). Therefore this newly fangled 19th amendment should be abrogated.

    • 0
      0

      @ramona therese Fernando – probably I believe you are looking have Chinese MPs in our parliament very soon at the rate at which thing are going on. Your bird brains should fed to rabid dogs.

  • 1
    5

    Another Moslem expert by the name Hameed wants to tell you that Wickremasingh is the Prime Minister and Rajapaksa is illegal. Lankan Sinhalese should notice this carefully. The next few months will be decisive in getting the country back to a better working order for which Rajapaksa has the support of the people. Sirisen should quietly melt away at some point and let the only true leader Lanka has, Gotaby lead the country by being elected in a Presidential Election. He has the poise, temperament, iron will and courage, as well as proven management skills for this task. Those who holler Seven Eleven in USA should note that managing such a set up well is a pretty good qualification to manage the many “seven eleven” type operations which together makes up its economy. Lanka is a drop in the ocean, and its people need strong leadership. Enough of arrogant, weak, low energy types like Wick who have no interest in his own people and are a relict of a bygone era.

  • 3
    2

    This must be according to the Sharia Law Book..
    Because Dr Laksiri and Dr GL both said there is nothing unlawful there…
    I am sure both those Doctors went o the same Law School in Colombo…

  • 1
    0

    Nice article, however the President can appoint a new PM that has not changed, has it? Maybe the 19th has a flaw but look who wrote it.

  • 3
    0

    President has right to do what parliament decides..
    .
    They must prove which party has got the majority..
    President has right appoint from the party that got majority ..
    He is limited by parliament..
    This is a simple logics ..
    What he did is treason nothing else .
    He power hungry man ..
    Villagme man can not rule .
    He will be killed by MR.

    So ; he can become president ..
    That will happen soon.
    Wait and see

  • 1
    0

    Dr. Reeza Hameed: “The constitution does not declare that the cabinet shall stand dissolved if its number were to exceed thirty.”
    Nor does it declare that the cabinet shall NOT stand dissolved if its number were to exceed thirty! The problem is that the amendment does not say what the consequence would be if the number of the cabinet exceeded thirty after the dissolution of a National Government. This is one defect of the new amendment that needs to be rectified in a future amendment.
    The PM could, of course, have been informed of the impending withdrawal of the other coalition partner, thus giving him advance notice to enable him to reduce the number to thirty so as to conform to Article 46 of the Constitution and obviating G. L. Peiris’ argument. But suppose he was notified and didn’t reduce the number, even after being given “reasonable time”? Assume that all cabinet ministers now supported him. What then? Clearly, such a cabinet would be illegal as per Article 46 (1) of the Constitution. What would be the effect of such an illegality? If not the dissolution of the cabinet, then what? At what point of time does it become illegal/unconstitutional? At the time the National Government is dissolved or when the PM has not reduced the number to thirty within “reasonable time”? By the way, who would have the authority to grant him “reasonable time”?
    The Constitution specifically provides for the continuation of the cabinet even during a transitional period prior to an election, as Dr. Hameed has explained. Whether you can extrapolate from this to a non-transitional period, as he has done, is questionable.
    Clearly, it is an oversight on the part of those who drafted the 19th amendment that they did envisage the effect of non-compliance with the constitutional provision regarding the maximum number of cabinet ministers.

    • 0
      0

      Correction of typo:

      In the last para. “they did envisage” should be amended to read as “they did not envisage.”

    • 0
      0

      Having read the 19th amendment a little bit more, I no longer think that G. L. Peiris’ argument based on Article 46 has any merit.

      Article 43 (1) provides, “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.”

      And according to 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.”

      All that the President had to do at the time of the dissolution of the National Government was to reduce the number of ministers to 30 to comply with Article 46. Having failed to do that, he cannot rely upon his own omission to argue that the cabinet stood dissolved from the time of the termination of that government!

  • 0
    0

    Some of us lay-Lankans called it a coup because it had all the hall-marks.

    Dr Reeza Hameed uses the phrase ‘constitutional coup’. Why be polite?

    • 0
      0

      K.Pillai, There was no violence involved. Hence, a hall-mark of a coup was notably absent. Reeza Hameed uses the phrase ‘constitutional coup’ more appropriately. Let it pass.

  • 1
    0

    Good Riddance when it comes to Ranil. This fella had complete disregard for Sinhalese Lions and was pandering to minorities. Let this be a strong lesson to all those Sinhalese Monkeys who think they can get together with the Minorities and remain in power for long.

    OTOH, if you are with the Sinhalese and help suppress the minorities you have the possibility of coming back to power even against heavy odds. This is what MR proved.

    And for those few politicians who think they are “neutral”, let me remind them that either you are with the Lions or you are with the Pariahs. There is no middle ground.

  • 1
    0

    Shall we go point by point? Assme the President sacked ALL ministers leaving the PM untouched. Is that constitutional?

    Soma

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.