26 September, 2020

Blog

The Prime Ministerial Conundrum

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

An assorted collection of politicians, including former academics and a retired judge, have presumed to advise the President of the Republic on how he should exercise his constitutional power of appointing the Prime Minister. Indeed, one politician has even threatened to steal the Speaker’s mace and run round Parliament with it unless and until the President appointed to the office that politician’s designated choice. Assuming that misinformation was not their intention, these unsolicited exhortations and puerile threats demonstrate an incredible lack of understanding of the current constitutional structure of our country. Indeed, since 1947, under each of the three constitutions, the power of appointing the Prime Minister has been vested in the Head of State, to be exercised solely in his or her judgment and discretion.

There is only one solitary instance in the constitutional history of our country when the President is believed to have been intimidated into appointing to the office of Prime Minister one who was not her choice. Anecdotal evidence suggests that following the premature general election of 2004, President Kumaratunga was compelled to abandon her chosen candidate, Lakshman Kadirgamar, and instead appoint Mahinda Rajapaksa when the latter threatened to leave the Sri Lanka Freedom Party with a substantial group of newly elected Members of Parliament if he was not appointed to the office of Prime Minister. With the UPFA having secured only 105 seats, eight short of an absolute majority, the then President is believed to have succumbed to that threat.

Ranil MaithripalaConstitutional Head of State

The Governor-General under the 1946 Constitution, and the President under the 1972 Constitution, were constitutional Heads of State. They were non-political individuals who personified the unity of the state. Subject to one single exception, they exercised their powers and functions only on the advice of the Prime Minister or such other Minister authorized by the Prime Minister or by statute to tender such advice. That single exception, when the Head of State acted on his own responsibility, was the power to choose and appoint the Prime Minister. The 1946 Constitution did not provide any guidance to the Governor-General as to who he should appoint, other than a direction that the powers and functions vested in him shall be exercised in accordance with the constitutional conventions applicable to the exercise of similar powers and functions in the United Kingdom by the Queen. One such convention was that, at the conclusion of a general election, the Queen would inquire from the leader of the political party that had secured the most number of seats whether he could form a government. Accordingly, at the conclusion of the 1947 general election, the then Governor-General, Sir Henry Monk Mason Moore, invited Mr D.S. Senanayake to form the government, although the party of which he was leader had only 42 of the 95 members elected to the House of Representatives.

Constitutional conventions followed

This convention was followed at the conclusion of each of the general elections held thereafter: in 1952, 1956, March 1960, July 1960, 1965, 1970 and 1977. While five of these resulted in decisive victories for one or other major party, the Governor-General’s judgment and discretion were required to be exercised on only two occasions. In March 1960, Sir Oliver Goonetilleke invited Dudley Senanayake to form the government in a situation where the UNP had secured only 50 seats in the 151-member House of Representatives, while the SLFP under C.P. de Silva had secured 46. In the days leading to the vote on the Throne Speech, both parties sought the help of smaller parties (Federal Party 15; LSSP 10; MEP 10; CP 3) but without success, while Sir John Kotelawela unsuccessfully attempted to secure a UNP-SLFP coalition government. The Governor-General himself had discussions with all the party leaders. When the government was defeated on the Throne Speech, the Prime Minister advised the dissolution of parliament.

In 1965, when the UNP secured only 66 of the 151 seats, while the SLFP-LSSP-CP coalition had 55, the Governor-General was faced with a less daunting situation since the other parties: Federal Party led by S.J.V. Chelvanayakam (14), Sri Lanka Freedom Socialist Party led by C.P. de Silva (5), G.G. Ponnambalam of the Tamil Congress (1) and Philip Gunewardena of the Mahajana Eksath Peramuna (1), all expressed their willingness to help the UNP to establish a “National Government”.

Exercise of personal judgment

There were, however, unanticipated, critical situations in which the Governor-General was called upon to exercise his personal judgment. At least two such decisions remain controversial to this day. In 1952, when Prime Minister D.S. Senanayake fell off his horse at Galle Face Green and died shortly thereafter, the Governor-General, Lord Soulbury, was in the United Kingdom on leave and the Chief Justice, Sir Alan Rose, was Officer Administering the Government. Sir Alan awaited the return to the island of Lord Soulbury, who immediately invited Dudley Senanayake, a relatively junior member of the Cabinet, to head the government. The Leader of the House, Sir John Kotelawela, initially declined to serve in government, but agreed some days later after a meeting with the new Prime Minister “over a cup of tea”, facilitated by the President of the Senate, Sir Nicholas Attygalle. In 1953, when Dudley Senanayake unexpectedly resigned, Lord Soulbury chose Sir John to be Prime Minister.

In 1959, when S.W.R.D. Bandaranaike was shot at his residence by a Buddhist monk and succumbed to his injuries on the next day, Sir Oliver Goonetilleke invited Education Minister W.Dahanayake to head the government. Dahanayake was not a member of the SLFP, having joined the ruling MEP as the leader of the Bhasha Peramuna. The deputy leader of the SLFP, C.P. de Silva, was in hospital in London at the time receiving treatment for suspected poisoning. The Governor-General was perhaps influenced by the fact that, a few days earlier, Bandaranaike had indicated that, during his impending visit to the United Nations, Dahanayake would chair the meetings of the Cabinet.

In 1960, Sir Oliver, after consulting constitutional experts in the United Kingdom, appointed the newly elected president of the SLFP, Mrs Sirima Bandaranaike, who was not a Member of Parliament, as Prime Minister. She was shortly thereafter appointed to the Senate. The 1946 Constitution, in its wisdom, permitted a non-Member of Parliament to serve as a Minister for a limited period before securing membership of either House. Incidentally, that Constitution, which was non-ideological and flexible, protected the country against authoritarianism for two and a half decades, despite an attempted military coup and a bloody insurgency.

Significantly different structure

The constitutional structure in Sri Lanka today, established by the 1978 Constitution and reaffirmed by the 19th Amendment, is significantly different from that which existed under previous constitutions. The President, who is the Head of State, is also the Head of the Government and the Head of the Cabinet. The President appoints as Prime Minister the Member of Parliament who, in the President’s opinion, is most likely to command the confidence of Parliament. In this hybrid system of government, it is the Prime Minister and the Cabinet of Ministers, being Members of Parliament, who will assume the responsibility of securing the legislation and the finances that are necessary to implement the President’s programme of work.

A new mandate

In January this year, the voters of Sri Lanka elected Maithripala Sirisena to the office of President. In so doing, they endorsed the “common programme” in which he had set out his policies for the governance of the country during the next five years. He also declared quite explicitly, at the commencement of his election campaign that, if elected, he would appoint the leader of the UNP, Ranil Wickremasinghe, as his Prime Minister. The mandate he thereby received superseded the mandate that Parliament had acquired in the general election of 2010. It was obviously President Sirisena’s expectation that Parliament, as then constituted, would respect the mandate he had received, and would cooperate with him in implementing the “common programme”. When some members of the Opposition gave notice of a motion of no-confidence in Prime Minister Ranil Wickremasinghe, they appear to have been acting under the misconception that they could thereby secure the resignation of the Sirisena Government. According to constitutional practice and procedure, in a presidential system of government, a motion of no-confidence in a Minister or Prime Minister passed in Parliament would have little or no effect unless the President chose to take note of it. A presidential government can be brought down only through the impeachment of the President himself.

Synergy is of the essence

Today, under the 1978 Constitution, unlike under the former constitutions, the President is not an independent, non-partisan individual, exercising his judgment in choosing a Prime Minister to form and head a government. The President is already the Head of Government and of the Cabinet, having been elected by the free expression of the will of the people to serve in that capacity for the next five years. It is for him, and him alone, to choose a Prime Minister in whose ability to deliver on his programme and policies he has both faith and confidence. What a President already in office will seek is synergy in approach, management and teamwork that would facilitate the realization of his vision for the future of the country and its peoples.

Print Friendly, PDF & Email

Latest comments

  • 4
    2

    Sir, as usual you have very well presented facts which explain the position. The President as repeatedly mentioned will select his Prime Minister being the Head of the Government. Thank you for your well informed presentation.
    That third grade Professor of Law (unfortunately who happens to be your BIL) is presenting rubbish arguments promoting MR to be the PM. The jungle law professor must be feeling very uncomfortable these days as the President will not appoint him to the Parliament from the national list, in keeping with the new developments.

  • 8
    1

    A beautiful analysis by Dr. Nihal Jayawickrema, in lucid language. Hats off! That is evidence of erudition. CT must invite such scholars to write regular columns – Not the vainglorious Dayan Ph.d, Prof. Rajiva, the racists Mahindapala, Malinda Seneviratne and a couple of other crooks and clowns .

  • 0
    1

    The Political climate in Sri Lanka- from 9 January 2015 to date and the what is yet take place in the next 2 to 4 days, looks like a Re-enactment of Whitlam Saga in Australia (1975 )
    The citations below are related to the Political crises in Australia 1975 Oct -Nov. This has many parallels to the ongoing power struggle in Sri Lanka.RESERVE POWER of GG/(President).
    Some of the actions in it could be applied by MS, MR or RW ( John Karr, Gough Whitlam and Malcom Fraser)

    http://whitlamdismissal.com/what-happened/brief-chronology
    A Brief Chronology Of The Dismissal

    October 1975
     October 14: Minerals and Energy Minister, Rex Connor, resigns after being shown to have misled Parliament over ongoing negotiations for overseas loans with Tirath Khemlani. He is replaced by Paul Keating.
     October 15: Every metropolitan newspaper in Australia calls on the Government to resign. Fraser announces that the Senate will delay the two money bills until Whitlam calls an election.
     October 16: The Senate blocks the money bills, whilst the House of Representatives passes a motion of confidence in the government.
     October 16-November 8: The Parliament debates the constitutional crisis, with the House consistently reaffirming its confidence in the government. Both sides of politics conduct rallies around the country. Public opinion polls show a swing to the government. The Governor-General, Sir John Kerr, speaks with both Whitlam and Fraser on a number of occasions.
    November 1975
    By early November, the crisis was no nearer resolution. Rallies and campaigns for and against the actions of the Opposition were being held across Australia.
     November 03: Fraser offered to pass the Supply Bills, provided Whitlam agreed to call an election by May 1976. Whitlam rejected the offer.
     November 10: The Chief Justice of the High Court, Sir Garfield Barwick, a former Liberal Government minister, sees the Governor-General. Later, he gives Kerr a letter that the Governor-General releases the next day to support his decision.
    November 11, 1975
    The events of this momentous day in Australia’s political history occurred on the day the nation remembers its war dead and on the anniversary of the hanging of Ned Kelly.
     9.00am: Whitlam meets with Fraser and other Opposition leaders. He says that he will call a half-Senate election immediately unless the money bills are passed.
     10.00am: Whitlam makes an appointment to see Kerr.
     10.10am: The Labor caucus is told by Whitlam that there will be a Senate election.
     10.30am: Fraser tells the Opposition parties there is nothing to report.
     11.45am: House of Representatives meets and debates yet another motion of confidence in the government.
     12.10pm: Kerr’s private secretary phones Fraser to tell him to go to Government House at 1.00pm.
     12.45pm: Fraser leaves for Government House, where he is shown into a waiting room.
     12.50pm: Whitlam leaves for Government House, not knowing Fraser is there.
     1.15pm: Kerr dismisses Whitlam.
     1.30pm: Kerr commissions Fraser as Prime Minister.
     2.00pm: The Senate passes the Supply bills.
     2.30pm: Fraser announces to the House of Representatives that he is Prime Minister, moves that the House of Representatives adjourn, but is defeated.
     ABC Radio Coverage: Around this time the ABC went to live, continuous broadcasting of the political events in Canberra, providing a remarkable audio record of the day:
     3pm – 4pm
     4pm – 5pm
     5pm – 6pm
     6pm – 11 pm (selections)
     Channel 7 Late News
     3.03pm: Whitlam moves a motion of no-confidence in Fraser.
     3.16pm: House of Representatives passes motion of no-confidence in Fraser. The Speaker asks for an appointment with Kerr, but is told that Kerr cannot see him until 4.45pm.
     4.50pm: The Governor-General’s secretary, David Smith, goes to Parliament House and reads the proclamation dissolving Parliament. The proclamation concludes with the words “God Save the Queen.” Whitlam declares that “nothing will save the Governor-General” and implores his supporters to maintain their “rage and enthusiasm”.

    December 1975
     Dec 13: The ALP is defeated at the polls. The Fraser Government secures the largest majority in Australian Federal political history.

    Please read the chapter The Constitutional Crisis pages 272 to 299 of The dismissal : Australia’s most sensational power struggle : the dramatic fall of Gough Whitlam / by Paul KellyKelly, Paul, 1947-
    http://trove.nla.gov.au/work/19122785

    Also Power, Parliament and the People – Michael Coper, ‎George Williams – 1997 – ‎Australia
    chapter five (Page 126….) REFLECTIONS ON 1975 The dismissal and Australian democracy Paul Kelly The dismissal is the most dramatic political event in Australian history
    https://books.google.com.au/books?isbn=1862872473

  • 4
    1

    Much as I usually agree with Nihal:
    Much as I abhor the prospect of MR becoming PM:
    This time I reject the nuances in Nihal’s piece.

    I would have had no problem if he had explicitly added the following two statements.

    a) “Notwithstanding anything I have said, if the UPFA secures an absolute majority, President Sirisena would have no option but to call upon MR to form a government”.

    b) If ‘a’ above were not true, 19A would be a mockery and a travesty of democracy. The people elect the President disposes! Where is the curtailment of absolutist executive power that 19A is said to have introduced?

    Let us get one thing clear, the job of defeating Mahinda Rajapaksa belongs to us the people; it is not a matter to be subcontracted to legal luminaries and to convoluted arguments. Thank you Nihal, but no thank you. We the people have to take responsibility ourselves for what we do on 17 August.

    Your way of juggling could be dangerous when one day the chickens come home to roost and the boot is on the other foot.

    [19A creates an unstable and conflict prone system. I have dwelt with that several times elsewhere but nobody takes notice. Now the fat is in the fire, or shall we say the fire is going up the arse! But this is all another matter].

    • 0
      0

      As much as I have disagreed with Dr. Kumar David in the past, and as much I have endorsed Dr. Nihal Jayawickrama to the hilt repeatedly, I tend to favour KD in this instant. We cannot afford a fluid state prevailing when it comes to nominating a PM.

  • 5
    1

    One time his hero was Felix Dias. Now he is behind Ranil-job for the old boy ?

  • 2
    0

    Much as I appreciate Dr Kumar David’s comments, I have to disagree. A constitutional head of state is bound by constitutional convention to invite the leader of the party securing a majority of seats at a general election to form the government. In the absence of any party securing an absolute majority, he has the discretion to choose another member who, in his opinion, would be able to obtain the support of a majority from among all the members of parliament.

    A president who is directly elected by the people, on the basis of a manifesto of his own, and who is both head of government and head of the cabinet, can choose any member of parliament who, in his opinion, can secure for him the support of parliament for the implementation of his policies.

    The 1978 Constitution did not envisage a situation where an elected president would be confronted by a hostile parliament. JRJ, when asked what would happen in such an eventuality, responded that if he found himself in that situation (probably knowing that that was most unlikely) he would transform himself into a constitutional head of state. That would have constituted an intentional violation of the constitution – a ground for impeachment. The problem has now been exacerbated by the 19th Amendment which, due to the SC determination and the ill-considered impulsive amendments at the committee state, has created a hybrid system that may prove unworkable if not amended very soon.

  • 2
    2

    Those who voted for ‘Good Governance’ never voted for Ranil. Ranil becoming prime minister never penetrated the public mind as something catastrophic. Furthermore there was no alternative but to give the prime minister post to UNP, since Maithripala’s campaign was entirely fueled by UNP. General public was used to seeing executive presidents running the show and prime minister being a more or less a figure head. Nobody thought RW would run the show and Maithripala would take a back seat. At least nobody thought Maithripala would take the farthest seat from driver to enjoy the scenic beauty and never worry where the vehicle was headed. To have complete faith on RW for a politician of Maithripala’s stature was just beyond reason for many Good Governance advocates. It just put the entire country in harm’s way.

    Furthermore giving a majority in the parliament to UPFA means President Maithripala would also have a significant influence on the conduct of the government. In the case of UNP government Maithripala would be hugely sidelined, simply because no UNP minister would go beyond Ranil’s word. But if UPFA is in power, Maithripala could work with UPFA MP’s at a personal level. This is simply because he has been working with them for the past so many years. So UPFA winning means more purposeful involvement of Maithripala in the strategic decision making of the government. Associates of Mahinda Rajapakse could be moderated also by Maithripala. So setting aside the personal agitation President Maithripala has of Mahinda Rajapakse, UPFA coming to power in August17th general election and Mahinda Rajapakse becoming prime minister is a far better outcome than giving power to sinister Ranil and his gang of buddies, even from the point of view of president Maithripala

    In order to ensure the sovereignty of Sri Lanka, it is a must that Ranil is not made the prime minister. In order to ensure the average Sri Lankan lives are enriched it is a must that Ranil is not made the prime minister. In order to make sure that our younger generations are passed on a united, undivided Sri Lanka it is a must that Ranil is not made the prime minister. The only way to make sure of that is by voting for UPFA and making sure that August17 doesn’t become day of resentment for generations to come. We should be vigilant to the fact that politicians of minority parties are hell bent on diving this country with the help of foreign powers. Foreign powers are supporting these politicians so as to exert their influence on the South Asian region through Sri Lanka. Ranil will do as told by these external forces and be completely ignorant of the native Sri Lankan peoples demands. This moment is a critical juncture of our history, mess it up and we would be opening up the doors to hell. Make the correct decision and we can protect our country so that we can work on improving living standards of each and every Sri Lankan. That correct decision is voting for UPFA and ensuring Ranil Wickramasinghe does not become the prime minister !!!!

    [Edited out]

    • 2
      0

      Do not have high expectations. If not, you will feel very frustrated on Tuesday morning.

  • 2
    1

    It is very interesting position that created discussions within the political and legal expetts. It needs considerable indefth discussions and debates about the Srilankan constitution and its implications on minorities.
    Srilanka’s population consists of 75% Sinhala speaking people and 25% Tamil speaking people. The re entry of Mahinda Rajapkse in the paliamentray election in August 2015 who lost presidential election in 2015 January with the aim of becoming Prime Minister has created a controversy among Sinhala politics but it has created fear among Minority communities because the camaign of Mahinda Rajapakse is 100% based on anti-minority rascism. We should note that this time Mahinda and his alliance did not go to campaign in the North East. Out of the 75% Sinhalese, if more than 51% votes go to Mahinda and 24% go to Ranil then there is a possibility Mahinda can become PM. IF 67% of Votes go to Mahinda he can get two third majority and he can change the constitution on his way. Even if Mahinda wipe out Tamils & Muslims, he can manipulate by law according to his own wish. He is capable of doing that in the name of Buddhism. The question is what protection is there in the constitution to protect the Tamils and Muslims. So far, Tamils & Muslims of Srilanka were not part of the decision making in the design of constitution and there is nothing in the constitution to proect Tamils & Muslims as citizens of Srilanka.

  • 1
    2

    Mr Jayawickrame,

    Sirisena has closed all doors for Mahinda to be the People’s PM. Mahinda undoubtedly is the most popular politician in the country. In spite of all hindrances, if Mahinda wins, can Sirisena beat a JANAWARAMA? Whither Democracy and YAHAPALANAYA? What is your expert opinion on this.IF THE LOYAL MASSES OPEN THE FLOOD GATES OF THEIR WRATH AGAINST SIRISENA what will happen?

  • 0
    0

    Chanakya,

    I can only respond to your question from a constitutional perspective. I believe I have already attempted to do so (please see above) in reply to Dr.Kumar David. When you say “If Mahinda wins”, I understand that to mean “if he is elected to parliament from the Kurunegala district”, since there is no other election in which he is a candidate. At the conclusion of the election, the challenge that President Sirisena, who is the head of the government for the next five years, will need to face is to gather the support of at least 113 members who will extend their support to implement his “yahapalayana” programme. Once he is able to do that, he will need to identify a leader for that group whom he will invite to be prime minister. That is his constitutional right and duty. If he is unable to do so, the Constitution in its present form does not offer a solution except resignation from the office of president, in which event parliament will elect his successor.

  • 1
    0

    Thank You Honoured Sir Dr.Nihal J. for your beautiful and simple analysis.The nation has rejected the former President at the last P/Election and we don’t want to see him back to lead the nation with his track record.We are not interested in Politics and what we want is an experienced,capable & clean leader in the calibre of the present President who can serve equally the entire nation living in Sri Lanka and bring this beautiful country to prosperity. Thank you dear Sir.

  • 0
    0

    Thank you Mr Jayawickrama. I appreciate your comments.

    Many changes are taking place in the field, since you wrote the learned article. To make matters worse, I heard that our President was suffering from depression ,due to heavy stress and that he rested and went to vote in the evening.I hope much that he will settle matters amicably, whichever side wins.Some say that because of CBK’s promise to Ranil, he might make him the P.M. with a few UNPers, some from different parties and more SLFPers to make up the total of 30 mm for the National Cabinet.This para is just news, and I do not expect you comment on.

    On a personal note, when Mr Colvin R. de Silva presented the no Confidence Motion in Parliament in 1976, you and I were watching the proceedings.Later, when Mrs Bandaranaike had tea with you and Mr WTJ and the group she invited me too to join. Not to embarrass you Sir, but our team admired your calm and collected mannerisms,bright and intelligent personality and the usual , simple but immaculate dress.

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.