By 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.

Constitutional 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.