27 September, 2020

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The Possible Different Scenarios

By Mass L. Usuf

Mass Usuf

There are two decisions currently pending in the Courts. Firstly, the petition challenging the validity of the gazette notification in relation to the dissolution of Parliament and, secondly, the action instituted by way of a Writ of Quo Warranto.

This column will explore the implications based on the possible outcome of the different scenarios. An understanding of the outcomes is considered important because as citizens, we are duty bound to ensure the continuation of the institution of democracy.

Interim period

If the dissolution of parliament gazette is held valid. The Parliament will stand dissolved. Then elections will follow. Something of concern at this point is regarding the period between dissolution and the swearing in of the new government post-election. The constitution states in Article 18. (1):

“The Cabinet of Ministers 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 …. “

At the time of going to press, there is no functioning Cabinet of ministers to run the affairs of the state because there is a pending case.  If the court decides that the present government is without authority, there obviously will be no Prime Minister and a Cabinet of Ministers.  In this case, the president has to immediately appoint a prime minister and a cabinet of ministers in consultation with the Prime Minister. 

At present, the President has publicly declared that he will not appoint Mr. Ranil Wickremesinghe as the Prime Minister. The flip side would mean that he is prepared to appoint any other. To emphasise his reluctance in making such an appointment, the President said at the SLFP convention that even if the entire 225 members of the parliament unanimously approve his Premiership, he would still not appoint Mr. Wickremesinghe. 

Two legal issues stem from this (1) the President by implication accepts the need to appoint a prime minister. (2) His refusal is a violation of the constitution and the sovereignty of the people.

Analysing point (1) above, there is acquiescence on the side of the President regarding the need to appoint a prime minister.  From this, it becomes clear that this position paves the way for two other possibilities –

(a) the President accepts the appointment of Mr. Rajapakshe as not valid or, 

(b) he accepts that the No Confidence Motion passed in the parliament on 14th and 16th as valid. 

Is the President’s position not to appoint Mr. Wickremesinghe as Prime Minister sustainable? Let’s make a wild assumption. Elections are held and UNP wins. Will the President then also say he will not appoint Ranil as PM? This type of behaviour is unconstitutional and should not be allowed to take precedence. It may invariably lead to a dictatorial or arbitrary rule.

With regard to (2) above namely that the President is in violation of the constitution and the sovereignty of the people. This has four more implications. 

(a) the President is in violation of his oath of office. Article 32 (1) of the constitution reads:

“The person elected or succeeding to the office of President shall assume office upon taking and subscribing the oath or making and subscribing the affirmation, set out in the Fourth Schedule, in Sri Lanka before the Chief Justice or any other Judge of the Supreme Court.”

The Fourth Schedule is as follows:

“I …………………… solemnly declare and affirm / swear – that I will faithfully perform the duties and discharge the functions of the office of …………………………………. in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”

(b) he is in violation of the parliamentary procedures relating to the appointment of the prime minister. 

When the Speaker who is the final authority on matters relating to Parliament and in the performance of his duties under Article 4 (a) which states:

“the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;”

informs the President of the passage of the no confidence motion in Parliament, that notice to the President has to be accepted by him.  Inaction to that notice is the next violation.

(c) he is in violation of the constitutional responsibility to appoint as prime minister the member who commands the confidence of the parliament.  Article 42 (3) stipulates: 

“The President shall appoint as Prime Minster the Member of Parliament who in his opinion is most likely to command the confidence of Parliament.”

(d) he is in violation of the sovereignty of the people who have entrusted to the executive presidency the responsibility of carrying out the executive functions of the people. Article 4 (b) of the constitution states:

“The Sovereignty of the People shall be exercised and enjoyed in the following manner: – 

(b) the executive power of the People including the defence of Sri 

Lanka, shall be exercised by the President of the Republic elected by the People;

For sake of argument, in a situation where the Parliament unanimously decides that Mr. Wickremasinghe should be named the Prime Minister, what authority does the President have not to affect such appointment.  The members of the parliament are representing the legislative sovereignty of the people.  Not doing so is totally violating the sovereignty of the people.

It has to be borne in mind that the President’s powers are not absolute.  It is subjected to limitation as seen in Article 42 below:

“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.”

Therefore, the president is answerable to the parliament for the discharge of his functions as the executive president.

Second Scenario

If the gazette for dissolution of parliament is held not valid, then problems will follow, if the Maithri/Mahinda camps do not respect it. They would resort to public agitation for an election. What role civil societies must play in this instance is an important question that needs answers? In my view, as a matter of principle, calling for elections should not be supported. The reason for this depends on the outcome of the next petition that is the writ of quo warranto.

The second action, the Writ of Quo Warranto, if it is held that the holding of office is without authority, then we do not have a government. The President must appoint a Prime Minister who commands the confidence of the House and in consultation with the Prime Minister the Cabinet of Ministers.

If it is decided that the offices held are valid, then there is a de jure government. However, since this government does not have the confidence of the House, a No Confidence Motion following the parliamentary standing orders will inevitably be brought and passed. After which, the President must appoint a Prime Minister who commands the confidence of the House and in consultation with the Prime Minister the Cabinet of Ministers.

For us citizens, this is not party politics. This is about protecting democracy and democratic institutions. There is an important role for civil society to play. Every citizen must rise up to the occasion and get involved in a peaceful manner.

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Latest comments

  • 0
    3

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 5
    22

    My only advice to Lankans is, when reading articles written by people who believe that their God has given the ultimate way of life and governance called the Sharia law, and are waiting for the demographic bomb to explode on Lanka with a Moslem majority in next 20 years, please read with caution. The writer of this article if a sworn Sharia proponent, only wallowing in the analysis of the current situation to find the most suitable solution to achieve the final goal of an Islamic Republic of Lanka. Beware of Jihadi’s in democratic garb!

    • 10
      2

      What matters are the arguments not personal beliefs.

      Do you not accept the arguments? What is wrong with them?

      • 4
        8

        By your nom de plume its clear you are another Sharia Jihadist.

        Sharia Jihadist don’t have the moral authority to speak about democracy. Their arguments are part of Islamic deception called Taqia well enunciated in the Koran.

        Stop playing games , Lankan ISIS members or wannabe members masquerading as democracy’s saviors is hilarious.

    • 12
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      Jay Chambers: You have told us that you have a degree in Bigotry.
      Now read the article.

    • 6
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      Gay Chamber is the same from day one, when he first wrote his bigoted rants against Islam and anything Muslim. An empty vessel making a lot of noise. He has been endowed with an inferiority complex and fear of ‘his country’ overrun by Sharia compliant Muslims. I can only say with certainty, such events are beyond the realm of human influence, but can only happen under Divine intervention. Ultimately, only the truth will prevail and get permanently established, while the rest will just fade into history, leaving behind many ruins from the past.

      • 2
        5

        Its interesting to notice that none of the Moslems here even try to deny that they are Sharia first, Islam first and democracy mumbo jumbo is only for this instance, for their benefit, to be a part of the conversation. When imbeciles and wimps like Ranil the Wimp, Sajit the Retard, come to power they get the chance to plan for the Jihadi apocalypse on the naïve Lankans, both Buddhist and Hindu. Again, I appeal to the Lankans, Jihadis sworn to Sharia should not be in this conversation. Do not listen to their warped viewpoint. Their viewpoint is nothing but a way to get to The Islamic Republic of Lanka.

  • 0
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    The most complex scenario is tomorrow if the biennial party lose the case and malignant party win it, then the injunction continues or malignant party loses it all together. In that case there would be no parliament and no cabinet. If the parliament is not there then how the funds for election will be approved? How the expenses are going to be met until the new government seated? Legal luminaries so far have put only convoluted arguments & the matter has got worse by Ranil’s refusal to take legal action for his dismissal.

    New King has handed over the responsibilities of the ministries to Secretaries. But secretaries have legally lost their authority because of the injunction. But Old King is claiming he and his team are still holding the positions, but not functioning. So, if that talk is valid, it may give oxygen to Secretaries to function. But the parliament has restricted the funds for secretaries by two different resolutions. Again Old Royals denying it. One thing for sure is, if the secretaries go ahead and spend money, Ranil will never hold them legally responsible for the unauthorized spending. They clearly understand that and they will be spending people’s money on their ways; especially to their party’s election expenses.

    Suppose the malignant party gets all its way and election is held. What happened in 2005 is Old King lost the Island wide election; but won the Sinhala Buddhists’ election and got the EP position. His party didn’t win the parliament election either. JVP and UNP supplied 75 MPs for him to run the government. Though in 2010, it is claimed he won, but Ponny did not have a fair election. The Parliament election he won. In Jan, 2015 he set the best election time for him and conducted the election hoping he will win. But he lost. He did not win even in the Aug, 2015 either.
    . .

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    In Feb, 2018 SLFP (New King) did very severe damage to UNP. New King was aggressively cutting the branch he was sitting. Beyond the Yahapalanaya government’s mistakes, this split dearly punished UNP in the election. This current fight has resurrected UNP out of the Feb, 2018 mist and clouds. UNP is now free to do its campaign if wishing to go against New King & Slap Party. Chandrika may find some ways to split the remaining SLFP votes. If UNP is still cunning enough, it can cheat Tamils and Muslims in the election (, provided that may be conducted in two or three months.) In 2015, Old King took the advice of a horoscope reader and conducted his election two years early. He thought going two years early, i.e. before he loses his popularity, is advantageous for him. That did not work that time. Now, there is no question if UNP had continued for another 1 ½ years, they never would have been able to lift their head again. But Old King disturbed it and forcing them to go for an early election and saving them. By the same bat, they have knocked down couple of their wickets by their recent wicked behaviors. Media is reporting he lost his majesty by this coercive power grapping. People voted out him in 2015 for his brutality. As per Leader Pirapaharan Sinhala Buddhists have that in memory only for two weeks. But, now Old King has reminded why they voted out him in 2015. All what he is doing now is keeping the cabinet with him, thinking that will give him an edge in the election. His is not minding of that aggressive action is working negatively in people’s mind. His two weeks memory is not helping to remember that he had all these Bells and whistles in Jan 2015, but still lost.

    So certainly the election going to be chaos and after the election even the country too can go into chaos.

  • 0
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    Mullaiyuran,

    Hi Hi Hi, I am trying to stop my feelings for the following comment:
    “Chandrika may find some ways to split the remaining SLFP votes. “” Do you know how many votes were casted for SLFP in her local polling booth in Aththanagalla in the last local government elections? I heard that only 2 votes for the SLFP with compared to 1000s for Pohottuwa. What I heard was that servants of the Horagolla Manasion or Walawwa even did not vote for SLFP in the last local government elections..

  • 0
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    Jay
    To respond to a fool is like responding to a mad man !
    When a guy is commenting with a professional mind set at least respond to the subject matter without showing your inferior complex and your upbringing !

    Otherwise exchange of opinions becomes meaningless !

    Presume you have empathy and compassion otherwise you will not have time to comment !
    I always believed two wrongs won’t make one right !!

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