20 September, 2018

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The President Cannot Remove The PM

By Reeza Hameed

Dr. Reeza Hameed

Following the large gains made at the local government elections at the expense of the UNP and SLFP by the Mahinda Rajapaksa led SLPP, the pro-Mahinda Rajapaksa opposition has been calling for the resignation of the Prime Minister on the basis of the spurious claim that the government has lost its mandate to govern.

Rajan Philips (‘The government’s consummate crisis in the face of Mahinda’s unconsummatable win’, The Island 17, November 2018) has stated quite rightly that SLPP’s success at the local elections “cannot directly enable Mahinda Rajapaksa to replace the government at the national level.” As Rajan Philips has pointed out, “how would the local government election results ever justify Nimal Siripala de Silva worming his way to Temple Trees as Prime Minister of a minority government?”

The local government elections were not intended to provide a mandate to govern at the centre but that has not prevented the opposition parties baying for the Prime Minister’s blood demanding that the President sack him. This is a crisis that has been manufactured to unsettle the government of which the President himself is a partner. The President seems not to know his own powers in this regard and sought the Attorney General’s advice but the latter has informed him that he, the Attorney General, alone cannot give an opinion on the matter and advised the President to consult the Supreme Court.

The President does not possess the power under the Constitution as amended to remove the Prime Minister. There is also no room for the application of the principle that he who hires may fire.

Prior to the Nineteenth Amendment, the Constitution provided for the removal of the Prime Minister from office by the President as one of the several ways in which the Prime Minister’s term could have been brought to an end. Article 47 of the Constitution, in its pre-Nineteenth Amendment form, provided 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 unless he – (a) is removed by a writing under the hand of the President; (b) resigns his office by a writing under his hand addressed to the President; or (c) ceases to be a Member of Parliament.”

The Nineteenth Amendment repealed this provision and replaced it with a new provision, albeit replicating the language of Article 47 but without clause (a). It is provided – now in Article 46 (2) – that the Prime Minister shall continue to hold office 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.

Unfortunately, despite the Nineteenth Amendment taking away the President’s power to remove the Prime Minister, those responsible for its drafting made a mess of it in failing to make the necessary consequential amendments. Thus, Articles 47(2) and (3) continue to make references to the Prime Minister’s “… removal from office …” These words have now become a dead letter and ought to have been removed.

Article 48(1), which states that the cabinet of minister shall stand dissolved on the Prime Minister “ceasing to hold office by death, resignation or otherwise…” seemingly confuses the issue. A quick glance at Article 66 would show that one of the ways in which a person would cease to be a Member of Parliament is upon his death. There are many other instances when a person may cease to be a member; hence the phrase “or otherwise”. 

Professor G.L. Peiris has echoed the view expressed by ex-Chief Justice Sarath N Silva that there seemed to be neither a government nor a cabinet right now and the President could remove the Prime Minister, if required. Sarath Silva (“Cabinet illegal, Prez has power to appoint PM: Sarath”, Daily Mirror 16.2.2018) has contended “that the entire Cabinet including the Prime Minister stood illegal at the moment as the two year period stipulated for the national unity government had ceased.”

The President has no power to determine the legality of the Cabinet of Ministers of which he himself is a member. In any event, Parliament may determine only the number of Ministers in the Cabinet and not its formation, composition or duration.

Apart from the two instances referred to in Article 46 (2), the Prime Minister shall continue to hold office so long as the Cabinet of Ministers continues to function. The President may make changes to the subjects and functions to be assigned to ministers and the composition of the Cabinet but, as has been made clear by Article 43 (3), such changes “shall not affect the continuity of the Cabinet of Ministers…” Indeed, the Cabinet of Ministers will continue to function even after the dissolution of Parliament until the conclusion of the General Election even though Ministers may cease to be members of Parliament.

The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President shall appoint as Prime Minister a Member of Parliament who in the President’s opinion is most likely to command the confidence of Parliament. Once the Prime Minister has been appointed, the President may not interfere with his term. The Prime Minister is responsible to Parliament and not to the President. The Prime Minister may of course determine his own fate by resignation, or if he ceases to be a Member of Parliament. By removing the President’s power to dismiss the Prime Minister, the Nineteenth Amendment took away from the President his ability to destabilise the government.

The constitution in its original form made the term of the Parliament depend on the President’s will. Article 62 had provided that unless it was sooner dissolved, parliament’s term was to be six years. The only qualification to this power of unilateral dissolution was that when a general election had been held consequent to upon the dissolution by the President, he shall not thereafter dissolve Parliament until the expiration of one year from the date of such election.

This power to dissolve parliament had previously been a powerful weapon by which the President was able to make Parliament subservient to his will. The Nineteenth Amendment removed the President’s power to unilaterally dissolve Parliament. The President’s power to dissolve Parliament is now confined to the last six months of its life, except where Parliament itself requests its dissolution by a resolution passed with the support of no less than two-thirds of the Members of Parliament.

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Latest comments

  • 11
    7

    Then how was it able for Maithripala to appoint Ranil as PM who had only a minority strength in parliament when the then PM with a majority was in office after the presidential election in Jan 2015?

    • 10
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      Because under the old constitution MS appointed RW as care take PM and then at the general election he was made PM as UNP had majority in parliament. Also in the process at different point in time the constitution amendments were passed with a majority.  

    • 1
      0

      Huh???

    • 10
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      Because that happened BEFORE the 19th Amendment to the Constitution… think before commenting.

      • 1
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        SEAN: There are so many ways If the President wants to remove him. Anyway, PM is PResident appointed MP.. Parly leader is not relevant here. but, Ranil;’s nadagama is making Sri lanka understands that Ranil is a clown, not a responsible and respectable politician. In politics, TRUST IS VERY important. Understand Mahinda Rajapske had 84% approval duyring the war. but, he had lost by the time he reaches the election

    • 9
      1

      Because the Opposition was so shell shocked after the 08 January defeat and did not have the guts to present a motion of no-confidence against Ranil W despite the fact that they had a majority in Parliament.

    • 1
      2

      It looks like Anura or Sampanthan Aiya can become Prime Minister, not the other way- Old King cannot become Opposition leader- because he is from ruling party.

      One may jump in to argue that there are lot of magics in that kind of arrangement. But those constitutional draft who wrote these are brothers and sisters of Thero De Silva, nothing better.

  • 8
    0

    After all it looks that many politicians did not read the constitution and its amendments..
    So they do not know what constitution entails and what rights and privileges both president and PM have? What can they do and what can not they do ?
    What limitation they have? And more importantly what is the difference between local and general elections in Sri Lanka according to the Sri Lankan constitution..
    So ; it has been weeks of confusion and clarity .
    Legal experts and constitutional lawyers did not explain this right at the start of the confusion in the eve of legal election results respected days ..
    It looks weeks for this clarity.
    Thank you Dr R Hameed for this clarification..
    You should be advising president rather than writing this article.
    We have a lot of good experts and yet Sri Lanka politicians have got some less qualified people around them …
    That is why they could not advise president on this issues ..
    MR is a lawyers and GL is a law expert..so why did they make this mess

    • 5
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      Prof. GL has given his opinion not as a law professor but as a politician. Any academic opnion would involve an evaluation of all possible interpretions before coming to a final conclusion.

      • 4
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        Most of Professor GL’s opinions fall in to the category ‘ The Intellectual Yet Idiot’ category as Nassim Nicholas Taleb so aptly describes.

      • 3
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        G.L.Peiris is a slimmy gutless skunk. Remember the inciden t at Viharamaha Devi park when the bomb went off and MrS Athulathmudali had to c arry G.L.P while he was cryung like a baboon

  • 1
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    Under the duties of the President as expressed in the Constitution is to follow, protect and safeguard the Constitution( and not follow the interpretations given by so called pandits). If the President or any person does not know or cannot understand the law or the provisions in the Constitution is not an excuse before the Law. It is assumed under Law that everybody knows the law. If some wrong is done without knowing the law consequences may follow.

  • 0
    1

    Dr. Reeza Hameed: Why in the world, Presient appointed PM can not be removed the PResident. IS he executive president or just a MP who reports to the PM ?

    • 2
      0

      Softy,

      Take a bath for now.

      Don’t touch those any more.

    • 1
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      Remember when Sira was elected President he told a reporter ( this is no fiction, it is recorded and published) when asked about how he was going to get on with Ranil as PM he said “ I always addressed him as Sir and. I will continue to do so”.For Sira therefore the Presidency is not only a massive upward move in his political career, but socially like a direct transportation to Nirvana.So we are talking here not of cabbages and kings, but the little flea who got into the elephants trunk and had him under control. Whether the elephant has the lung capacity to sneeze strong enough to send the flea from here to eternity is yet to be seen.

    • 1
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      Jim, he is a gal ibba

  • 8
    0

    Well done Dr. Reeza Hameed? I am sure Prof. GL Peries, (Constitutional who was involved in the Chandrika 1996 proposal and Oslo accord in 2002) understand the facts & truth well that the President has no powers to remove PM. What the Rajapakse & Co wants is power because they know well that they will be caught for their crimes very soon.

  • 3
    0

    Everyone is just jumping around. nothing will change with this back boneless president in place. nothing has actually changed, the only change is SLPP has virtually wiped out SLFP. (Rajapaksas have wiped out Banda’s SLFP) . There is no SLPP majority (second majotity) in parliment to form the opposition. JO chaps are yet to join the SLPP to do that.

    Basil has given an interview in today’s DM where he dodges the question “whethte SLPP will join the SLFP in the future” and he answers as if SLPP has replaced SLFP. And Basil comfortably takls about plans for future elections . When asked who is going to be the leader of SLPP, he said our “iconic leader is MR” (do not know whether he meant symbolic leader). So its high time JO chaps and MR come to terms and get ready to work under Basil. good luck….

  • 4
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    The results of the Local Government election cannot remove the President or the Prime Minister or for that matter the the Leader of the opposition.

    SO can we stop this madness!!!!!!!!!!!!!!1

  • 7
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    call to remove the PM is a political one. GLP has ceased to be a functional prof. long ago. whatever he says is cheap politics not coming from his legal mind if he has any. i admit he is a lose to the legal world and a liability to politics. his superb english cannot be understood by very average englishman and that is another matter. while accepting the defeat at the LG elections the GOVT> should move forward with the red alert. two years too short. Govt. slept for 3 years now it appears to be too late. cabinet can change , but policies?
    -dayal

    • 0
      1

      Dayal,

      It is evident that people have no confident in the Prime minister or the President. So why do they want to continue a government on an outdated mandate formed 3 years back?

  • 0
    0

    “President can’t remove the president”

    The problem here is the party solidarity is stronger than national interests.

    Man with lost credibility is safe on top. & the president too helpless after sacrificing his wand.

  • 2
    0

    I don’t give a damn who rules ,I ant to know if the Constitution will be completely replace with a new one with 100% Transparency and a Public executive committee .

    If Not forget Sri Lanka if you have a way to migrate do it , no one is going to pull this country out of huge debts unless to constitution is changed as I have mentioned above , else it will be a taking turns of pocketing whatever is there and whatever comes in ,with a new constitution like mentioned above very few politicians will offer to rule and if anyone does then you will know that there ate honest men among/Women still among SL politicians ..

  • 0
    0

    Do we need all this drama when the law is very clear and unambiguous?

    Interpretations as per the Constitution

    Prime Minister and Cabinet of Ministers

    Appointment of Prime Minister – Article 42(4)
    42. (1) There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic.

    (2) The Cabinet of Ministers shall be collectively responsible and answerable to Parliament.

    (3) The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.

    (4) 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.

    Appointment of the Cabinet of Ministers – Article 43(2)
    43. (1) 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.

    (2) The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined.

    (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.

    Note:
    1. The President has to appoint every cabinet minister based on the advice of the Prime Minister
    2. Article 43(3) – The President has the discretion to change the composition/subject/function but such changes will not effect the continuity of the Cabinet of Ministers.(i.e.. the cabinet shall not stand dissolved)

    Tenure of Office of the Prime Minister – Article 46(2)
    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.

  • 0
    0

    Do we need all this drama when the law is very clear and unambiguous?

    Interpretations as per the Constitution

    Prime Minister and Cabinet of Ministers

    Appointment of Prime Minister – Article 42(4)
    42. (1) There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic.

    (2) The Cabinet of Ministers shall be collectively responsible and answerable to Parliament.

    (3) The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.

    (4) 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.

  • 0
    0

    The 19th amendment does not contain anything regarding the appointment of the Prime Minister.

    So it is all upto what the President, in his judgement thinks who is most likely to hold the confidence of the parliament. Cunningly drafter to leave it all upto the opinion of the President, and who can question the opinion of the President? If you remember after 18th August 2015 the President was willing to appoint an SLFP prime minister after getting together a majority SLFP parliament. That was after the 19th amendment.

  • 0
    0

    Sri Lanka is filled with educated donkeys with books on their backs,they will pass the county from crook to crook to rob ,because most of the public today are crooks ,

    If you check with interpol you will find thousands of Sri Lankans have stolen in foreign countries, check first with Dubai ,Kuwait, Bahrain ,Qatar and see how much they have played out and used forged passports and escaped backed to Sri Lanka , in the west ,like UK ,USA the famous is credit Card frauds ,they get a lot of credit cards buy stuff on installments and and sell everything for half price or some ship it to Sri Lanka and run back to Sri Lanka where the law protects crooks ,during Kuwait war how many Kuwaitis were robbed while they were on vacation.

    When maximum of the population of a country are crooks by default ,what is the use of changing constitutions ?

    Only that ever worked is changing governments who are more flexible in robbing, having large duties on customs so the smuggles and custom officers both can thrive on fake cost declaration,

    Whatca fxxked up nation

    • 0
      0

      Sri Lankans or rather the Sinhalese are known traditionally as fools. Our ordinary folk still are. It is only those with a modern Western education who have proper discrimination and good judgment. Democracy empowers the masses- those who in our country are stupid and once believed there was a hare on the moon. .Fortunately they have the innate good sense to elect a Prime Minister like Ranil W. Those others who ascribe to power or who are also in power are jealous of him because they lack his erudition. But our masses are more mature than we assume. They know that governance requires the wise to be in charge a point made by Plato. So despite the propaganda against him by those who cant match him, the voters recognize Ranil W as the best choice.Let more educated persons come forward instead of uneducated demagogues

      • 0
        0

        Raja S
        So only those with a modern western education have good judgment. I suppose Sirisena does not fall into that category. Premadasa didn’t have it either.Remember the people of this country did not elect RWas the PM. He was appointed by the uneducated President. There are more stupid people other than those who believe in the hareon the moon. There are people who believe that resurrection after death is possible, as well as the same lot who believe that a woman who gave birth to a son is still a virgin. There are all sorts of modayas in this world including a notorious Modaya who thinks that he can bribe the young people of this country by offering free gold bracelets, and wi fi. The most stupid are those who think that all others are stupid.

  • 1
    0

    Dear Mr Reza Hamid
    Please consider the following
    When there is any language inconsistency the Sinhala version prevails. That is law and cannot have any disagreements on that issue.
    Please see Art.48(1) of the 19th amendment.it refers to dissolution of cabinet. The underlying factor in this section is that the cabinet stands dissolved when PM ceases to hold office
    According to English 48(1) which I believe is what you read PM ceases to hold office by death,resignation or otherwise.
    But the Sinhala version says the PM ceases to hold office due to removal from office, resignation or otherwise. Removal is defined under 46(3) as removal by letter issued under the hand of the President
    In the constitution before 19th amendment section 47(a)the PM can b removed by President by issuing a letter under his signature
    So 48(1) Sinhala refers to the same circumstances while 48(1)English has dropped the removal part in it
    If the English version had this clause referring to the removal of PM I trust you will agree that such a step can only b taken by the President.
    As contained in the Sinhala clearly to an event of removal of PM there cannot be any doubt that it will b by the President only
    I have clearly pointed this out in my article published in Colombo Telegraph few days back
    I kindly invite you to read at least this section in that article for which I take full responsibility
    If the cabinet stands dissolved due to the removal of PM it Ipso facto follows that there is provision for President to remove him
    Sorry I had to pin pout these sections since it is important to resolve an issue by referring to all relevant articles
    More so when the whole affair appears to be a deliberately cooked up confusion!
    Thank you

  • 0
    0

    My article referred to in my comment is dated 20th Feb titled.
    Many things go into constitutions

  • 0
    0

    MR’s Spokesperson speaks out:

    “The Mahanayake of the Asgiriya Chapter of the Siam Nikaya has called for the end of the Unity Government and urged President Maithripala Sirisena to install a new single party or alliance Government.
    In a statement released through the Chief Secretary of the Chapter, the Most Venerable Warakagoda Gnanarathana Mahanayake Thera said that if such a Government could not be formed, then steps should be taken to dissolve Parliament and hold a General Election.The President is prevented from unilaterally dissolving Parliament for four and a half years by the 19th Amendment to the Constitution, but the House could pass a resolution to dissolve.The Mahanayake Thera condemned moves by political parties, leaders of political parties, and the Government to retain power.”

  • 0
    0

    Ranil has started so many projects but he had not finished any of those. Probably he di dnot want PResident taking the credit.

  • 0
    0

    There can be constitutional provisions of all kinds. If a premier cannot be removed for good reasons, say for criminal conduct or loss of confidence in parliament, then something is wrong some where. The president can be removed on impeachment. Further, inconsistencies in versions, such as the Sinhala and English is another matter of concern. Apart from legalities, the current situation demands not the removal of a premier but mending of ways of governance of the country for which both the president and the premier are collectively responsible. They were not given a mandate in 2015 to fight like kids half way the term when clearly both of them lost there popularity. COME ON! Both of you! Accept the verdict of the people and do some soul searching. The basic question is both of you have alienated from a good majority. Why? Go to the grass roots and find your answer.

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