Arguments from both sides follow flawed patterns of reasoning; go for parliamentary election

By According to Article 3 of our Constitution, sovereignty is in the people. In terms of Article 30(2) of the 19th Amendment, the president is elected by the people of the entire country. The president is the Head of the state, head of the government, the commander-in-chief of the armed forces and even the head of the Cabinet of Ministers (vide Article 42(3). 

On the other hand, “The Parliament members are only agents of the people.” These are the exact words of Justice Raja Wanasundera, when he delivered the judgement of the 13th Amendment to the Constitution in 1987. 

In terms of Article 42(4), the elected president has the discretion to appoint the prime minister even after the 19th Amendment. The real issue to be examined here is whether the president has the authority to remove the incumbent prime minister after the 19 Amendment.

Arguments from both sides exhibit flawed patterns of reasoning
The eminent people and legal experts have quoted Article 48 of the Constitution in order to justify President Maithripala Sirisena’s decision in removing former Prime Minister Ranil Wickremesinghe. They have claimed that once the Cabinet ceases to exist, the office of the prime minister is also non-existent. 

The meaning of Article 48 is: on the prime minister ceasing to hold office, the Cabinet stands dissolved and not the other way around. For example, condition A will lead to condition B but doesn’t necessarily mean that condition B will lead to condition A.

The situation where the Cabinet ceases to exist doesn’t necessarily mean that the office of the prime minister ceases. In view of the above anomaly, the proponents of Wickremesinghe say that the prime minister cannot be removed as per the said article; that position, which in my view, is correct.

However, it is true that Article 48, as per the Sinhala version of the Constitution, was referring to a situation arising from the ‘removal of the prime minister’. Therefore, one cannot say that there is no provision to remove the incumbent prime minister after the 19th Amendment.

Further, Wickremesinghe cannot hang on to the office of prime minister on the basis that he commands the majority in Parliament. It is not Parliament that appoints the prime minister. It is the president’s discretion. 

In my view, the arguments from both sides exhibit flawed patterns of reasoning. The rationally minded and right-thinking people and even the foreign ambassadors and dignitaries are obviously confused and may tend to think that this move is unethical and may be unconstitutional, thus creating unwarranted social unrest, leading to some kind of a constitutional crisis.

President’s power has reduced under 19A; Article 42(4) is still in force
Parliament does not have a role (as the initial step) in deciding who the prime minister is. It is the president’s opinion what matters here as the initial step. If the president feels that Wickremesinghe is most likely to command the confidence in Parliament, he can appoint Wickremesinghe as the prime minister.

Don’t forget that Wickremesinghe became his prime minister three and a half years back. If the feelings changed to such an extent that he is unable to have Wickremesinghe as his prime minister three and a half years later, then he should be able to look elsewhere for a new prime minister. That’s how he removed Wickremesinghe under Article 42(4) and appointed Mahinda Rajapaksa as his new prime minister. 
It is true that in order to establish that Rajapaksa commands the majority in Parliament, the new prime minister may have to face a vote of no-confidence in the future but that’s a subsequent event or a secondary matter. 

This is the letter and spirit of Article 42(4): “…who, in the president’s opinion, is most likely to command the confidence in Parliament” – not the majority in Parliament. The president is the appointing authority as well as the person who is authorised to remove the prime minister, so appointed as per the interpretation ordinance. Therefore, there is no need to specifically mention in the said article about the removal. 
The proponents of Wickremesinghe argue that in terms of Article 46, which deals with the tenure of the office of the prime minister, he cannot be removed and the prime minister will continue unless he himself resigns or ceases to be a Member of Parliament. 

Then what would happen to him after defeating at a no- confidence motion for the prime minister in Parliament? Does it mean that he cannot be removed just because Article 46 specifically gives only two situations for prime minister losing his position? The prime minister was removed in terms of the powers vested under 42(4).

Role of Parliament in appointing PM
Wickremesinghe says that he has a majority in Parliament. Does it mean that the president is compelled to appoint him the prime minister? No, because, it is then Parliament, which appoints the prime minister. Parliament does not have a role in deciding who the prime minister is. In fact, Sirisena’s two letters dated October 26 dealing with the appointment and removal have also mentioned Article 42(4) only. 
Another important point is that Parliament does not recommend a person to the president to be appointed as the prime minister. It is not Parliament but the president’s opinion that matters. 

Has national government ceased?  
It is true that the president, as the leader of the United People’s Freedom Alliance (UPFA), has withdrawn the support of the UPFA as one of the constituent parties to the national government formed on September 2, 2015. However, the president has opted not to reconstitute the Cabinet, which was above 30. It goes without saying that a functioning of a Cabinet exceeding 30 is unconstitutional. 

Instead, he has opted to remove Wickremesinghe in terms of the powers vested under 42(4) and stemming from the above, the Cabinet of Ministers has ceased to exist (Article 48(1)). The president has acted according to Article 48 to dissolve the Cabinet after removing the prime minister and not as claimed by the opponents of Wickremesinghe. 

In my view, the president should have the courtesy to request the incumbent prime minister Wickremasinghe to form a new Cabinet and allow him to present the budget of the United National Front (UNF) government, which has already been prepared, thus enabling him to continue the ‘national unity government’ formed on September 2, 2015. 

The proponents of the UPFA/SLPP have argued that the national government formed under Article 46(4) has ceased to exist soon after Sirisena’s UPFA has withdrawn its support to Wickremesinghe’s UNF. Unfortunately, in terms of the ruling given by the Speaker on September 2, 2015, on the formation of the national government, the proponents of Wickremesinghe could still argue that this position is not correct and the national government has not collapsed even without one of the 
constituent parties.

What about the Muslim Members of Parliament contested separately? Is there a provision available to form another national government?

Solution lies in holding a parliamentary election
In the circumstances, the appointment of Rajapaksa as the prime minister by the president under Article 42(4) cannot be construed as unconstitutional. Further, Wickremasinghe cannot hang on to the premiership on the basis that he has the majority in Parliament. Parliament does not have a role in deciding who the prime minister is. 

Nevertheless, the president, in my view, should have the courtesy to request Wickremasinghe to form a government first and allow him to present the budget, which the UNF government has already prepared. 

Now that the prime minister is appointed and the Cabinet is being formed, the new government of Sirisena together with his prime minister, who happened to be the former President Rajapaksa, have to walk the talk and meet the expectations of the people of this country, thus upholding the traditions of the parliamentary democracy. 

My own view is to have some sort of consensus among the members of parliament and call for an early general election in order to form a new government. Notwithstanding Article 70(1) prohibiting the president to dissolve Parliament, the president has the power to call for a parliamentary election to enable the sovereign people to exercise their franchise.

As mentioned at the outset, Article 3, 4 are good enough to justify holding an election; if not, the president may exercise power under Article 86 and ask the people by referendum. Sovereignty is in the people and the president is elected by the people of the entire country. Sovereignty includes the legislative power and the franchise. 

(Jayampathy Molligoda is a Fellow Member of the Institute of Chartered Accountants of Sri Lanka. He has obtained his MBA from the Postgraduate Institute of Management and has also successfully completed an Executive Strategy Programme at Victoria University Melbourne, Australia. He counts over 37 years of executive experience in the fields of financial management, strategic planning and human resource development. At present, he serves as Executive Deputy Chairman of a leading public quoted company. He can be reached at [email protected])