27 September, 2020

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Why Didn’t They Tell The President? 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The President appears to believe that he still possesses the full executive powers he derived from the Constitution when he was elected to his office in January 2015.  Three months later, he sat during a tumultuous session in Parliament and witnessed the passage of the 19th Amendment to the Constitution, introduced by the Government of which he was the Head. That Amendment removed all his executive powers except three which he still enjoys: the power to appoint ambassadors, the power to appoint ministry secretaries, and the power to appoint provincial governors.  Even these cannot be exercised by him unilaterally. For example, the Foreign Minister has to seek the “agrement” of the receiving state before he could name an ambassador. Why didn’t they tell him that?

The President believes that he has the power to remove the Prime Minister. Yes, he had that power, but once upon a time. The 19th Amendment explicitly repealed that power. Why didn’t they tell him that?

The President believes that he can decline to appoint as Prime Minister the Member of Parliament who “is most likely to command the confidence of Parliament” even after an absolute parliamentary majority has identified such a Member. Why? Because he does not like him and thinks he cannot work with him. The Constitution does not state that the President must like, love or adore such Member. The Prime Minister is not the President’s employee. Why didn’t they tell him that?

The President is required to determine the number of Ministers, but the 19th Amendment says that the total number of Ministers shall not exceed thirty.  The number that the President determined in August 2015 was well in excess of that. He could have exceeded that number only if the party that secured the highest number of seats in Parliament formed a “National Government”. A National Government is defined in the 19th Amendment as a Government formed by such party “together with the other recognized political parties”.  A UNF- UPFA Government (leaving out the TNA, JVP, etc) is a coalition government, not a National Government. Why didn’t they tell him that? 

The President believes that he can change the composition of the Cabinet. There was a time when he could have done that. However, the 19th Amendment states that a Minister or Deputy Minister may be removed from office “under the hand of the President on the advice of the Prime Minister”. Therefore, the process of removing a Minister or Deputy Minister now must be initiated by the Prime Minister, and it is only on the Prime Minister’s advice that the President can make a removal order or change the composition of the Cabinet. Why didn’t they tell him that?

The President believes that he can dissolve Parliament at any time. Once upon a time, he could have done that. Today, the 19th Amendment states that he can do so only in the last six months of Parliament’s five-year term. If he wishes to do so earlier, he needs to obtain the consent of two-thirds the membership of Parliament expressed in a resolution to that effect.  He believes that the general power to dissolve Parliament included among his powers and functions enables him to exercise that power at any time. He is obviously unaware of the rule of law that a general power is circumscribed by a later provision that specifies how (by proclamation) and when (after four and a half years) that power may be exercised.  Why didn’t they tell him that?

The President believes that he can refuse to accept a resolution of Parliament because, in his view, it had not been properly passed. The President has no control over parliamentary proceedings. That is entirely a matter for the Speaker. It is only the Speaker who can determine whether or not parliamentary proceedings have been properly conducted. Neither the Executive (of which the President is head), nor the Judiciary can pronounce upon the propriety or legality of parliamentary proceedings.  Several years ago, when the Judiciary under Chief Justice Sarath N Silva attempted to prevent the acceptance by the Speaker of a parliamentary resolution, Speaker Anura Bandaranaike, acting on expert legal advice, rejected that move and defined where the boundary lies. Why didn’t they tell him that?

The President appears to believe that, in the absence of a Prime Minister and Ministers, he can administer the government through the ministry secretaries. The 19th Amendment specifies the proper sequence: (i) The President appoints the Prime Minister; (ii) The President determines the number of Ministers and the Ministries, and the assignment of subjects and functions to such Ministers; (iii) On the advice of the Prime Minister, the President appoints the Ministers to be in charge of the Ministries so determined; (iv) The President appoints a Secretary for every Ministry of a Minister; (v) The Secretary, subject to the direction and control of his Minister, exercises supervision over the departments of government and other institutions in charge of the Minister; (vi) The Secretary to a Ministry ceases to hold office upon the dissolution of the Cabinet of Ministers. Apart from the fact that a Secretary functions under the direction of his Minister, and not of the President, the Constitution states that, if and when the Cabinet stands dissolved, every Ministry Secretary ceases to hold office. Why didn’t they tell him that?

The President believes that he can ignore three repeated resolutions of Parliament expressing a lack of confidence in the “Government” of Mahinda Rajapaksa. Article 48(2) of the Constitution states that if Parliament passes a vote of no-confidence in the Government, “the Cabinet of Ministers shall stand dissolved”, and the President “shall appoint a Prime Minister, Cabinet Ministers, and Deputy Ministers”. He has not done so for several weeks and, acting utterly irresponsibly, has thereby introduced an anarchic situation into the country. This country belongs to all of us who live in it, and not to a single individual who appears to believe that he can act according to his own whims and fancies. Has no one told him that?

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Latest comments

  • 19
    1

    UNFORTUNATELY, all those who can tell him what he can do are imbecile “nuts”!

    • 8
      6

      Moral of the story is that Lanka can function well without the rotten politicians, Ministers, PMs and Cesspit Diyawenna Oya parliament.

      In fact, democratic Checks and balances are working for the first time with the SC adjudicating after President rightly fired Bondscame Ranil. The PCOI into Bondscam Reprot must be released and Ranil jailed along with Mahinda Jarapassa, his partner in crime.
      .
      JVP is a sorry lot that cannot see that the President checkmated US puppet Bondscam Ranil because he was looting the country and selling of strategic resources to his Trump-land backers.

  • 9
    0

    Should we the Public praise the Ministry Secreataries for making sure that they are running the Departments much better than with the Ministers.
    We should pay them the money that has been saved by not paying Ministers.

  • 15
    0

    For the sake of clarity it is of utmost importance and need instant action to forward a sinhalese translation of this authoritative opinion to Mr. President – Maithripala Sirsena if he still deserves to be called that.

  • 11
    0

    Perhaps he has been told but prefers feigning ignorance so that he can do his own thing because he wrongly considers himself to be invincible. In short he is on his way to becoming a tinpot dictator. On the other hand, he may be insane.

  • 16
    1

    The President can be impeached under Article 38 (2) (a) on the grounds that he is “unable to execute his functions due to mental or physical infirmity, or if he is found guilty of certain acts. These actions include intentional violation of the Constitution, treason, bribery, misconduct or corruption involving abuse of power of the President, or any offence involving moral turpitude.” Why didn’t they tell him that? He is clearly showing signs of mental illness and there have been credible allegations of bribery and corruption. And on Monday he’s likely to be found guilty of “intentional violation of the Constitution.”

  • 18
    0

    Such a great article. Why don’t they show him (MS) this article? Oops. First they have to translate this article into Sinhala though.

  • 11
    0

    Well, hopefully the Supremecourt will tell him if no one has already.

  • 11
    0

    Who has to tell the president?

    The Supreme Court has to tell the President

  • 17
    2

    Thank you Dr. Jayawickrama for trying to play the violin to a deaf elephant with a distorted mental state. What more can you expect from a tabloid reading ‘Gamarala’ with his own house in disarray?

  • 7
    15

    Oh Gawd another Constitutional expert who believes that Article 70(1) is a later (note the word ‘later’ meaning of more recent date) provision than 33(2)(C). Are we to have no end of them? First Sunday Times editorial of 11 November 2018, then Prof. Suri Ratnapala and now this. Perhaps the intervening petitions in the dissolution case should have brought the evidence of all these public proclamations by so called experts of a belief that 70(1) and 33(2)(C) belong to different chronologies as evidence that by standards of people of reasonable understanding, 70(1) and 33(2)(C) are perceived as unconnected to each other and inhabiting separate realms. Stand alone provisions in other words.
    “He believes that the general power to dissolve Parliament included among his powers and functions enables him to exercise that power at any time. He is obviously unaware of the rule of law that a general power is circumscribed by a later provision that specifies how (by proclamation) and when (after four and a half years) that power may be exercised. Why didn’t they tell him that?”
    Well Nihal Jayawickrama why didn’t they tell YOU before letting you loose on the reading public that your so called ‘general power’ was introduced into the constitution at the same time as your so called ‘later provision’ that specifies how and when that power may be exercised? Why didn’t they tell YOU that, both these later provisions introduced at the same time into two separate chapters of the constitution may be intended for two different purposes, two separate contingencies. Why didn’t they explain to YOU the scheme of our constitution where a provision and the provisos circumscribing that provision occur most often in the same Article or at least in adjacent Articles when the provisos are wide ranging and that placing a provision and its proviso in separate chapters would be more characteristic of a detective story than a Constitution.

    • 1
      1

      Critical Take
      Thanks. You seem more convincing than most of the ‘experts’ inhabiting CT these days. Now kindly tell me the meaning of the words ” on the advice of” ? Surely it should be different from “as decided by”. Am I wrong to think that ‘advice’ can be accepted or declined?

      Soma

    • 1
      0

      Critical Care,
      ” that 70(1) and 33(2)(C) belong to different chronologies as evidence that by standards of people of reasonable understanding, 70(1) and 33(2)(C) are perceived as unconnected to each other and inhabiting separate realms. Stand alone provisions in other words “.
      Are you suggesting there are two separate EP positions in the constituion and one apply for the position one and the second applies only to the other position? If they both applies to the same job, they both are binding the same executive!
      Suppose that you were following a cake mix recipe and you did all that and the last line said just “bake and enjoy” then you are going to ignore the last because it is stand alone as it did not mention the words “the dough you made” so you are going to eat it as it is?
      Articles 33(2)(C) and Article(70) applies to the same executive. When New King took the oath for EP they both applied to him simultaneously. At no time he can brush off one and undertake the other.
      Further it is stupid to argue that article (3) allows EP to kill any man, rape any woman, any store, arson any house………………..Please stop that non sense! It is just telling the executive named as President would be functioning as the Executive, defined eventually. (If nothing was defined eventually that is a different debate. But 19A and 1978 Constitution are defining elsewhere who the executive is.) Instead it was naming one as President it could have named as Chancellor or Director or Governor or PM or even as “Bloody Bitch”. That doesn’t change the aspect of the introductory article’s nature. It is only introductory. There is no “Standard Job as Executive” defined any in languages. So it has to redefine in the constitution.

      • 2
        0

        Look Mallaiyuran, if you can’t express yourself in English clearly enough, what’s the point? You can’t put into words what’s in your mind in a way which makes sense for other people. I will try to use short sentences.
        You read Article 33(2)?.What is its intro? start quote- “In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power–end quote

        Then the powers are listed. Note the phrase ‘in addition to’. That means in any language, that powers listed under 33(2) are in addition to the powers, functions and duties given to the Prez by Constitution or any written law. If powers given to prez by the Constitution and other written laws =X and if powers given to prez under 33(2)=Y, then the total powers the Prez has=X+Y. That means the prez has the power to dissolve Parliament given under 70(1) which is subject to provisos given under 70(1) PLUS the power to dissolve Parliament given under 33(2), which is not subject to provisos. You must be a lady fond of cake baking. But analogies will only take you so far and not farther. It’s always good to take the actual example. You have been had. (misled) The drafters of 19A have used deceit and dissimulation to pass with only 2/3 majority provisions that would have required a referendum. And now SC has the challenging task to impose upon these conflicting, deceitful sentences, some sense giving synchronisation. They are best equipped to do it than us and all the counsel, who aided the court by presenting before the judges their clients’ interpretations. Now let’s leave the Court to do their job. Bake a Christmas cake if you find the wait too tedious. Needs time to ferment if I have heard right.

  • 0
    0

    MS as the President and RW as the premier are bound to work together under the constitution and the relationship between them is created as per the same constitution. They can’t work as a married couple as if the husband says that he can’t live with his wife. This behavior of the head of the state has costed the country economically and politically in a huge way. Though Sri lanka is a small country, it had a reputation of maintaining democratic norms and values in the region and unfortunately that image has been damaged for petty politics. How we can redeem that lost value? Its up to the people who uphold the values of democracy and abide by the law of this country to wake up from their illusions and act strongly in the future elections.

  • 2
    1

    Just as a driver of a car has to know the laws relating to road use, President has to know the law as per the constitution. “Not knowing the law” is never an excuse

  • 1
    0

    One man rule is what democracy has degenerated to in the 70 years since independence. People have been accepting the lapses in democracy over these years without protest.

    May be the majority community will accept the present situation as normal and acceptable in the future.

  • 7
    0

    Dr Nihal Jeyawickrama,
    The Prof (GLP), the self elected Legal Experts like DJ et el together with the former CJ – they did definitely tell the President.
    But what they told was just the opposite in this beautifully presented article.

  • 1
    0

    Dr. Nihal Jayawickrama poses the question “Why didn’t ‘they’ tell ‘him’ that, that, that ………………and that?”.
    The ‘him’ is of course MS. The ‘they’?
    Some three decades back, starting as a foot-soldier MS has gone through trying times in Lankan politics. Of course he knows the answers to “that, that, that..……..and that”
    Why, from 26 October, did MS do “this, this, this ………..and this”?
    .
    MS has the answers but will never tell us.
    Most likely MS wanted to avoid violence spreading to the Lankan streets.
    Will he succeed tackling future “this, this …..and these”?

  • 9
    2

    This idiot sirisena does not understand a thing he is like a small child he is not fit for this post

  • 5
    2

    A typical Gamala elected by the Goviyas. The height of ignorance. The selection of MP’s should be overhauled

    • 4
      5

      Ceylonese,
      This Gamarala got elected because Demala (Hindu and Muslim) and dumb Sinhala Goo N.P. supporters voted for him. 5.8 million Sinhala voters did not vote for him. When he was tolerating what that ‘Thuppahi’ leader was doing to please the ‘Koti Diaspora’, he was an Angle descended from heaven. After he took the bold decision to save this country from ‘Thuppahi’ leader, he became the villain.

      • 4
        0

        The 5.8 million did not votr for
        Sirisena. They voted against
        Rajapakse.
        As in the case of Trump in
        America, where it was a vote
        against Hillary.
        Both countries.are in this situ
        because, they could not find
        better candidates.

  • 6
    2

    Nicely done Mr. Jayawickrema. 👍

  • 2
    1

    HI Nihal Jayawickrama
    Didn’t anybody tell MS that NJ wrote:

    AUGUST 19, 2018 AUTHOR: NIHAL JAYAWICKRAMA53 COMMENTS
    Disqualifying Twice Elected Presidents – A Failed Endeavour?

  • 4
    0

    Well written & expertly analysed. A good job done Dr. Jayawickrema. Many of our “Constitutional Law” experts can take “a leaf from your book”!!

  • 6
    0

    Easily the best interpretation of the 19thAmendment.
    Very interesting question Dr.Nihal J. WHY DIDNT THEY TELL HIM?
    Someone has given him a DEAD-ROPE!
    The question now is who gave him that DEAD-ROPE?
    Could it be Ex:CJ. Sarath.N.Silva?

    • 0
      0

      Perhaps he read the English version in which it may have been drafted too. I am sure he would have thought he understood it but failed. You can’t blame him after all he was a ‘Sinhala Only.’ man with a reasonable use of English. It is not a crime. The crux of the matter is ‘he din’t know that he didn’t understand’. These things happen causing a lot of confusion.

    • 0
      0

      Or Nihal Laddu?

      ADJP

  • 5
    0

    He deserves the same punishment what Saddam Hussein got, for destroying the nation.
    Sira thought Mara will save him,
    Mara-Sira-Hora tactics won’t work now, He should be impeached punished and his assets ,bank accounts frozen.

  • 2
    0

    The 5.8 million did not votr for
    Sirisena. They voted against
    Rajapakse.
    As in the case of Trump in
    America, where it was a vote
    against Hillary.
    Both countries.are in this situ
    because, they could not find
    better candidates.

    • 0
      0

      S. V.
      Spot on.
      Unfortunately, this “SAGA” will be repeated at the next election.
      It will be a tall order to elect a “proper” candidate.

  • 0
    0

    This article has no value because it is a totally partial one.

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