By Mass L. Usuf –
With the swearing in of the Member of Parliament Mr. Mahinda Rajapaksa as the Prime Minister on 26th October 2018, President Sirisena literally placed the whole nation in harm’s way. Thank God, sanity prevailed and what would otherwise had been a blood bath was averted.
The Brussels based International Crisis Group (ICG) had this report filed. “On 26 October, Sri Lanka’s President Maithripala Sirisena abruptly dismissed the prime minister, Ranil Wickremesinghe, and appointed controversial former President Mahinda Rajapaksa to the premier’s post, in a move that contravenes the constitution and threatens to destabilise the country. Rajapaksa’s appointment has already emboldened his supporters, with their actions provoking violence. More unrest is likely as the president and the new prime minister seek to consolidate support. The struggle for power jeopardises progress on reforms, ethnic reconciliation, and prospects for peaceful and fair elections in 2019.” (Crisis Group Asia Briefing N°152, Brussels, 31 October 2018).
It further noted that the power struggle now underway between Rajapaksa and Wickremesinghe has already turned violent, with the new prime minister’s supporters attempting to stop a recently ousted minister from entering his office and clashing with his security detail. Risks of further bloodshed are high, particularly if mass protests by Wickremesinghe loyalists continue over the coming days.
This move was a rash and negligent act for which the President should be held responsible. Besides placing the country on the brim of violence, he had by his imprudent act tarnished the image of one of the oldest democracies in South Asia. He also placed the economic interests of Sri Lanka in jeopardy. Foreign governments and organisations were reconsidering their economic support which were linked to democratic governance. The threat of European Union withdrawing preferential trade benefits, only restored to Sri Lanka in 2017 was imminent due to the unconstitutional change of power. The U.S. was urged by the ICG to immediately suspend the process for final approval of $450 million in economic development funding from the Millennium Challenge Corporation. Japan was reviewing the loan for the light rail project. In an unprecedented move ICG also recommended that Governments should begin to consider applying targeted sanctions against Sirisena, Rajapaksa, their families and their close associates should Sri Lanka’s constitutional coup proceed.
Abuse of Power
Following the appointment of the new Prime Minister, the alliance of the dismissed Prime Minister Ranil Wickremasinghe were fully geared to meet in Parliament. The institution where they have to test as to who commanded the majority in the Parliament according to the Constitution. To add salt to injury and of course, most unethically, President Sirisena committed another act of impudence by proroguing the Parliament on 27 October 2018. Thereby, depriving the floor test to ascertain majority in Parliament. Political analysts viewed the act of prorogation as a means of buying time to garner support for the new Prime Minister. The President by virtue of the powers vested in him by Article 70 of the Constitution can prorogue Parliament. However, given the circumstances and the timing of the order to prorogue Parliament, arguably the question arises if there has been an abuse in the use of such power.
The President is expected to act not inconsistent with the provisions of the Constitution and custom or usage. The duties in relation to the Constitution is stated as follows:
Article 33 “(1) It shall be the DUTY of the President to –
(a) ensure that the Constitution is respected and upheld;”
Article 33 (2) The President shall have the POWER –
“(h) to do all such acts and things, not inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage the President is authorized or required to do.”
According to the Constitution, the President is responsible to the Parliament. The Article 33A reads as follows:
“The President shall be 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.”
Did the President exercise the powers vested in him in the proper manner? Were his actions reasonable? Were they in conformity with the principles of natural justice? The power given to the President is not absolute power. It is power that has been granted subjected and conditioned by the provisions of the Constitution. He cannot, therefore, act like a monarch or like a dictator. The notion of the President being responsible to the Parliament is evident of the lack of absolute power in him.
Dying cancer Patients
The illegal horse trading that took place following the appointment and the prorogation were all the direct consequential effect of the initial cause of dismissal of the sitting Prime Minister. Everyone is aware of the hundreds of millions of rupees that was being offered to shamelessly buy over members of parliament. Therefore, his initial act, which is widely held as unconstitutional, then paved the way for several other acts of illegality to be committed to fulfil the needs of the initial cause namely, to secure a majority in Parliament. In disgust the public was commenting that these politicians had no money to install a Pet Scanner at the Maharagama Cancer hospital which cost around Rs. 200 million and would have served thousands of dying cancer patients. Instead, they are prepared to spend more than this amount for head hunting to satiate their greed for political power.
Judiciary Not Dead
Then came the gazette notification of the dissolution of parliament. Analysts opined that it was a desperate move by the President as he had by then reached the dead end. The required support did not come forth despite the illegal horse trading. Also, as one of his many stupid statements, the President said that he will not remain as President for even an hour if the dismissed Prime Minister reassumes duties. The dissolution was challenged and the Supreme Court has granted a stay order on the notification. Since it is sub judice, I will refrain from commenting except to say that the stay order was acknowledged by everyone and faith in the independence of judiciary has increased tremendously.
Dissolution After No Confidence
The Parliament was summoned today 14th November 2018 as per the earlier gazette notification and the floor test proved that the newly appointed Prime Minister did not have the confidence of the majority in Parliament. Therefore, he was constitutionally and democratically ousted from his post. It is now the duty of the President to appoint a new Prime Minister as per Article 42 (4) which states:
“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.”
Moreover, with the Prime Minister removed by a vote of no confidence in Parliament the Cabinet of Ministers also stands dissolved. Article 48 (1) states:
“On the Prime Minister ceasing to hold office by death, resignation or otherwise, ….. , the Cabinet of Ministers shall, …. , 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 in terms of Articles 42, 43, 44 and 45.”
Therefore, the President has to also appoint a new Cabinet of Ministers.
There is however a proviso to Article 48 (1) which stipulates:
“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.”
At present the Parliament cannot be dissolved immediately after today’s no confidence motion as the matter of dissolution is sub judice. Therefore, the President has no option but to appoint the Prime Minister and the Cabinet of Ministers. He better acts constitutionally in doing so without further exacerbating the mess he himself had created.