By YLS Hameed –
The legal issue relating to the removal of the former Prime Minister centres on certain legal questions. They are (1) whether the 19th Amendment has envisaged the removal of the Prime Minister at all, (2) if so by whom: by the President? or by Parliament? (3) and If so, under what circumstances?
Prior to the 19th Amendment, the Constitution provided for the removal of the Prime Minister of which two clauses are important. One was repealed Article 47(a) whereby the President could remove the Prime Minister by a writing under his hand. This was generally interpreted to mean that the President could exercise this power of removal at will. The second was the repealed Article 49(1) whereby on the Prime Minister ceasing to hold office by removal,….. Parliament should stand dissolved except during the period intervening between the dissolution of Parliament and conclusion of the General Election.
In the 19th Amendment, the first clause is completely taken away. However clause two remains intact through the replacement by Article 48(1). ( in the Sinhala text which prevails in the event of discrepancies between the texts in the different languages)
This change has led to the argument that Parliament intended in the enactment of the 19th Amendment that the President should no longer exercise the power of removal of the Prime Minister and that the word ‘removal ‘ in Article 48(1) refers to the removal of the Prime Minister by Parliament contemplated in Article 48(2).
Article 48(2) states, “ 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…..”
It can be noticed in this Article that Parliament does not remove the Prime Minister through the occurrences of the three situations envisaged therein. If they do occur, by operation of law, the Cabinet only stands dissolved.
Article 46(2) reads as “ The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function…”.
This means that if one of the three situations occurs in Parliament, by operation of law it will result in the automatic dissolution of the Cabinet, which will mean an end to the Prime Minister holding office. Here no one dissolves the Cabinet nor removes the Prime Minister. It all happens by operation of law.
If the occurrences of the three situations in Article 48(2) and their results are to be construed as amounting to the ‘ removal ‘ of the Prime Minister, Article 48(1) contradicts it when it states “ on the Prime Minister ceasing to hold office..by removal…, the Cabinet stands dissolved….”
Here the Prime Minister ceasing to hold office results in the dissolution of the Cabinet whereas in Article 48(2), the dissolution of the Cabinet results in the Prime Minister ceasing to hold office.
The three situations envisaged to occur in Parliament under Article 48(2) does not result in the removal of the Prime Minister first and then the removal is to result in the dissolution of the Cabinet.
Further, there are three instances where the Prime Minister loses office. They are (1) Resignation, (2) Ceasing to be a member of Parliament (3) Dissolution of the Cabinet [Article 46(2)].
Whereas the three instances where the Cabinet stands dissolved are (1) Rejection of Policy Statement or Appropriation Bill, (2) Passing of a vote of no-confidence in the Government [Article 48(2)] (3) The Prime Minister ceasing to hold office [ Article 48(1)]
It can be noticed here that as a result of dissolution of the Cabinet, the Prime Minister ceases to hold office and conversely as a result of the Prime Minister ceasing to hold office, the Cabinet becomes dissolved.
If the ‘ removal’ envisaged in Article 48(1) refers to the occurrences contemplated in Article 48(2), the first result is the dissolution of the Cabinet and then the loss of office by the Prime Minister both of which are combined to flow as a consequence of the occurrences in Parliament under Article 48(2). Then there would not have been a need for these two eventualities to be dealt with separately.
Moreover, the ‘removal ‘ under 48(1) could be carried out during the period of operation of Parliament as well as during the period intervening between the dissolution of Parliament and the conclusion of the General Election. If this removal were only to be effected by Parliament and the President is deemed to have been stripped of the power of removal, how could this removal be possible when Parliament stands dissolved.
Therefore it is crystal clear that the removal envisaged in Article 48(1) was not to be carried out by Parliament.
By whom and under what circumstances is this removal to be effected?
If it is not Parliament that is entrusted with this power of removal, then it is obvious that the authority in this regard is the President. This interpretation is obvious and it need not have recourse to the provision of the Interpretation Ordinance which lays down that the appointing authority has the power of removal.
Then the next question that cries out for an answer here is under what circumstances this power of removal is meant to be exercised. Whatever circumstances that might be conceived should include the loss of majority for the Prime Minister. Because the only criterion based on which the President chooses the Prime Minister is his likelihood of commanding the confidence of Parliament. This loss of majority may be an established circumstance or a most likely one.
The established circumstance may occur when a vote of no-confidence is passed only in the Prime Minister and not in the Government in which event the Prime Minister will not cease to hold office by operation of law because Article 48(2) contemplates a vote of no confidence only in the Government.
In such circumstance, if the Prime Minister refuses to resign then the President has to step in to exercise his power of removal under Article 48(1) since the Prime Minister, who has lost confidence of Parliament cannot be allowed to continue in office.
‘The most likely circumstance’ depends on the opinion of the President as per Article 42(4). The President has to form this opinion objectively and not subjectively.
The Removal of the Prime Minister
The UNP at the last General Election returned 106 seats. With SLMC’s one the total was 107. The balance came from the faction of the UPFA which also voted with the Government at the last no- confidence motion. When the UPFA pulled out of the Government the number naturally fell to 107 which was short of the majority required.
Then, can’t it be construed as an objective opinion that the Prime Minister has lost the confidence of Parliament. The appointment under Article 42(4) and removal under Article 48(1) are executive actions which needs no consultation with the Legislative Branch of the Government. However, the latter has the right to call the decision of the President for a test and pass a verdict on it which may be either confirmation or rejection of the President’s decision. Therefore the removal of the former Prime Minister is not unconstitutional.
National Government Argument
Some argue that what was formed following the 2015 Election was a National Government, which stood dissolved upon the exit of the UPFA resulting in the dissolution of the Cabinet and thereby the office of Prime Minister had become vacant and MR was appointed to that office.
This argument is untenable because it is not based on any constitutional provisions to that effect. What the 19th Amendment refers to, about the National Government is determination of the number of Ministers by Parliament and nothing more.
Article 46(1) limits the number of Cabinet Ministers to thirty and non- Cabinet and Deputy Ministers to forty under normal circumstances. When a National Government is formed Sub Article 46(4) removes this limitation and leaves it to Parliament to determine the number of Ministers. Nowhere is stated in the Constitution that the loss of character of a National Government would be deem dissolution of the Government.
Let’s look at a hypothetical situation where the UNP had obtained 115 members. However together with the UPFA it formed a National Government. Once the UPFA left the Government, would the Government be deemed dissolved notwithstanding the majority the UNP commands? No.
If the National Government loses its character, then the limitation on the number of Ministers as per Article 46(1) will take effect. This can be done in terms of Article 43(3). Therefore the removal of the Prime Minister is only on account of loss of majority in the President’ opinion.
Here one pertinent question that needs to be found an answer to is the basis on which the President formed his opinion that former President Mahinda Rajapaksha, who is from the UPFA, which had returned only 95 seats at the last Election is most likely to command the confidence of Parliament while UNP Leader Ranil Wickremesinghe, who had 107 seats was unlikely to do so. Was it an objective decision or a subjective one?
Whatever it may be, why was Parliament prevented from calling his decision for a test? Power belongs to the People and is inalienable. The People have, through the Constitution, vested their power in the different organs of Government to be exercised in trust for them.
The moment, the power is used for a purpose for which the conferment of the power is not meant, the power is abused and the organ concerned has acted outside the authority and thereby infringed on the sovereignty of the People. It is not only a violation of the Constitution but also a betrayal of the trust reposed in them by the People.
Here the People have vested the power of appointment and removal of Prime Minister in the President and the power to call his action for a test and to return a verdict with the Legislature. Though Article 70 empowered the President to prorogue Parliament he has used this power to stymie Parliament to exercise the power in this respect in trust for the People and thereby the President has suppressed the Rule of Law and resorted to Rule by Law.