By Saliya Pieris –

Saliya Pieris

For the first time in the history of the Second Republican Constitution, a Parliamentary Election is being held without any political party having the express support of the Executive President in office. Indeed for the first time in the political history of this country one main political party, is going in for elections without the support of its leader, who some may even say is tacitly supporting the other party.

On the 18th of August 2015, when the results of the Parliamentary Election are declared, what are the possible outcomes where the Prime Ministerial office is concerned? Even after the 19th amendment, the President yet has the power to appoint as Prime Minister, the Member of Parliament- who in his opinion commands the support of the majority of the Members of Parliament
There are three possible scenarios. The first possibility would be that the United National Party led UNFGG would either win an outright majority or be close to an outright majority in Parliament which would enable the President to reappoint Prime Minister Ranil Wickremesinghe. The next scenario, which at present seems unlikely, would be that former President Mahinda Rajapaksa’s supporters within the UPFA will gain sufficient seats to demand that he be appointed as Prime Minister. A third scenario would be that both the UNFGG and the Rajapaksa led faction of the UPFA have more or less an equal number of seats, giving the JVP, TNA and the pro-Maithripala faction of the UPFA a bargaining power in respect of the choice of Prime Minister.

Despite the discretion given to the President to appoint the Prime Minister considering constitutional conventions and the fact that he himself has no grip over his own party- the President will have only two realistic options. Either to reappoint Mr. Wickremesinghe as Prime Minister (with UNFGG alone or with the tacit support of the TNA, JVP or the UPFA Maithripala Faction), or to appoint Mr. Rajapaksa to that office (which will be possible only if the pro Mahinda UPFA MPs are able to obtain close to 113 seats).

Although President Sirisena has gone on record as saying that there are other qualified members in the SLFP eligible for the Premiership, any comfortable UPFA victory would leave him with little Constitutional alternative than appointing Mr. Rajapaksa, given the fact that Mr. Rajapaksa is leading the UPFA campaign and that President Sirisena will hardly be able to take credit for any UPFA victory.

Either way, where does President Sirisena go from there? He would be the Head of an administration consisting of a major political party over which he has no effective control and in case of a Rajapakse administration which may be hostile to him.

To understand the way ahead, one must look at the new constitutional equation after the 19th amendment to the Constitution . Although even after the 19th amendment, the President remains the Head of State, Executive, Government and the Head of the Cabinet of Ministers, it has very subtly chipped away the President’s powers, creating for the Prime Minister a stronger role than before.
Most importantly, the President no longer is expressly empowered to sack the Prime Minister, whereas prior to the 19th amendment there was a specific provision to allow the President to remove the Prime Minister. This would effectively mean that convention will demand that the Prime Minister cannot be removed as long as he commands the support of the Parliamentary majority.
After the 19th Amendment the President continues to decide on the number of Ministries, Ministers, their subjects and functions and is not bound to consult the Prime Minister on those scores. However he nevertheless is bound to act on the advice of the Prime Minister in making appointments of Ministers to those Ministries from among Members of Parliament. Furthermore removal of Ministers too can be done only on the advice of the Prime Minister.

In the past Presidents expanded their powers by taking on Ministries and subjects and functions which are not part of the Presidency itself. For instance President Rajapaksa was Minister of Finance, President Kumaratunga also held Finance at one time as well as Education. President Jayewardene held onto several portfolios including Power, Energy, Higher Education to name a few.
Post 19A , the President no longer has the power to assign ministries, subjects and functions to himself. However the transitional provisions allow President Sirisena to retain Defence, Mahaweli Development and Environment as long as he is in office and as long as he wishes.

Finally the President cannot dissolve Parliament until four and a half years have lapsed, unless requested by a vote of two thirds of the Members of Parliament. Unlike President Kumaratunga in 2004, the present President does not have the option of dissolving Parliament, even if he feels he can no longer work with the Prime Minister in office. As long as the Prime Minister has a parliamentary majority the President will be compelled to work with the Prime Minister for the next fifty four months, a prospect which President Sirisena may not relish.

To add to this the President’s actions qua President are now open for challenge in Fundamental Rights actions in the Supreme Court – except his power to declare war and peace. This would technically mean that even his appointment of a Prime Minister who does not command a Parliamentary majority is open to a challenge in the Supreme Court, although it is very unlikely that the Court would want to interfere.

Thus whether Mr. Wickremesinghe or Mr. Rajapksa is appointed the Prime Minister, somewhat like in France, the Prime Minister would have a greater degree of freedom to run the administration than existed during the operation of the present Constitution. This is despite the Executive President being yet the Head the Government and Cabinet of Ministers.

In view of this new role the Prime Minister is called upon to play and due to the fact that he has no effective control over either main political party, is President Maithripala Sirisena in danger of becoming irrelevant? Would he be compelled to only play a more or less ceremonial role-something like the role President D.B. Wijetunge played between August and November 1994, when the People’s Alliance was elected and Mrs. Kumaratunga appointed Prime Minister?

This need not be so. The President should use the very fact of his political neutrality to charter a new course for himself and the office he holds. When the Executive Presidency was first introduced it was thought that the Executive President would be a visionary, able to rise above partisan politics and act in the wider interests of the nation. Unfortunately every President from J.R. Jayewardene failed to rise above the fray and acted in a partisan manner detriment to the larger interests of the nation. These actions adversely impacted on the Rule of Law and the Independence of the Judiciary.

Now as a non-partisan President , Maithripala Sirisena should enhance his Constitutional role and to act as the moral voice of a nation, often tired of the partisan manner in which both main political parties tend to conduct the affairs of the State when in power. However for this to be done he will have to let go of his role in the UPFA.

With the new realignment of powers in mind the 19th amendment introduced Article 33(1) to the Constitution, specifying new duties on the Presidency including the duties to ensure that the Constitution is respected and upheld; to promote national reconciliation and integration; to ensure and facilitate the proper functioning of Constitutional Council and Independent Commissions and to ensure the creation of proper conditions for the conduct of free and fair elections and referenda.

The President should concentrate on these newly entrusted tasks, leaving the day to day administration to the Prime Minister and His Cabinet. He should use his Executive Powers to ensure that the new government keeps to the straight and narrow path. This would be easier when he does not exercise Ministerial office.

Thus in his new politically neutral role, President Maithripala Sirisena should strive to be a unifying force and to echo the voice of those who clamour to strengthen the people of this nation. He should ensure that his Prime Minister and Cabinet and officials comply not only with the law but also act ethically. He should compel them to be accountable in Government. He should ensure that the Constitutional Council, Independent Commissions are functional and empowered in the next five years.

By providing moral leadership to the nation Maithripala Sirisena can ensure that he and his Presidency will have a lasting legacy in the history of Sri Lanka.