Edinburgh Law School
Editors’ Note: This text is a cross-post from Groundviews and was published on 11 November 2018. The original text can be viewed here.
There have been intense public debates over the meaning and interpretation of the Constitution, and especially the far-reaching changes introduced by the Nineteenth Amendment in 2015, since the dramatic and ongoing attempt at an unconstitutional transfer power that began on the evening of Friday 26th October. Unfortunately, the discussion has been clouded by the attempts of those who are trying to uphold the approach taken by Maithripala Sirisena and Mahinda Rajapaksa, to present arguments that are – at best – simply wrong, without any valid legal basis, or based on a lack of understanding of the Constitution – or at worst – motivated by a deliberate desire to lie, dissimulate, distort, and misinform the public.
Such attempts gather greater traction than they should in a context defined by a history of weak communication by the legally constituted government, a largely uncritical and unprofessional mainstream media, and an electorate that has been poorly informed about the major changes established by the Nineteenth Amendment in 2015 – a constitutional amendment that was enacted as a direct implementation of the historic mandate for democratisation and good governance given by 6.2 million Sri Lankans of all communities and classes at the presidential election of 8th January 2015.
The following is an attempt to identify some of these false arguments, and to present clear rebuttals to them based on what the Constitution actually provides, and on the principles that ought to inform the working of a democratic constitutional system that the people of Sri Lanka mandated in 2015.
1. The Cabinet was dissolved due to the United People’s Freedom Alliance (UPFA) pulling out of the National Government, resulting in the vacation of the post of Prime Minister, which in turn allowed President Sirisena to appoint a new Prime Minister.
There is no constitutional provision that says that the withdrawal of one party in a coalition forming a National Government has the effect of dissolving the Government or the Cabinet of Ministers, and thereby the vacation of office by the Prime Minister.
The only legal consequence of the formation of a National Government is that the ordinary cap on the number of Cabinet Ministers at 30 and non-Cabinet Ministers at 40 is suspended, with Parliament determining the number of Ministers which may be higher than the ordinary limit. Conversely, if a National Government ceases to exist, then the only legal consequence is that the number of Cabinet Ministers must be reduced to 30 and the number of non-Cabinet Ministers to 40. This can be done by the President only on the advice of the Prime Minister, as all ministerial appointments and dismissals legally require the President to act on the advice of the Prime Minister.
The Nineteenth Amendment introduced the cap on the number of Ministers as a direct response to the Rajapaksa regime’s habit of using ministerial appointments as a tool of patronage. This resulted in the absurd situation of virtually every MP in the government parliamentary group under the Rajapaksa regime having ministerial office and the excesses, abuse, wastage, and corruption that ensued.
The Nineteenth Amendment therefore established the general principle of a cap on the number of ministers, together with a limited exemption when it permitted that cap to be exceeded when there was a National Government.
That is all that Article 46 says in regard to the issue of a National Government. Contrary to those who are trying to use it to argue that the withdrawal of the UPFA had the effect of bringing down the Government, Article 46 in no way authorises the dissolution of the Cabinet, and thus the loss of office by the Prime Minister, if there is a change in the composition of the National Government.
2. The President is empowered by the Constitution to appoint any Member of Parliament as Prime Minister, who, in his opinion, is most likely to command the confidence of the Parliament.
Defenders of President Sirisena’s action read Article 42(2) entirely literally to the effect that any Member of Parliament whosoever can be appointed Prime Minister by the President, because of the reference in the sub-clause of this provision to the ‘opinion’ of the President. This is both erroneous and dangerous.
It is wrong because it simply does not imply the subjective opinion of the person for the time being holding the office of President. The power of the President of the Republic is a constitutional power to be exercised in the public interest, not something that is personal to him that can be used in any way that he pleases. The phrase ‘command the confidence of Parliament’ is a constitutional term of art that comes from our legacy of Westminster-style constitutionalism, and it is meant to condition and limit the power of appointment of the Prime Minister to the Member of Parliament who can form a Government by being able, usually, to rely upon the support of the majority of the Members of Parliament. (Sometimes – rarely – the Prime Minister may not have a majority in the House, and then the conventions relating to minority governments apply.)
Understanding this constitutional provision in its correct sense is also incredibly important to protecting a democratic culture of government. The first task of interpreting a democratic constitution is to promote the values of democracy, constitutionalism, good governance, and the public interest. It is not to facilitate executive convenience and unilateralism, or to enable secret plots to subvert the constitution and change governments precipitately to serve the corrupt interests of a few politicians. That is why it would be dangerous to interpret this provision in a subjective way, and why it is not understood in that way in any Commonwealth parliamentary democracy that uses the phrase.
3. The power to appoint a Prime Minister as vested in the President by the Constitution also implies that he has the power to remove the Prime Minister.
This is plainly untrue when the whole framework of the Nineteenth Amendment is considered. Before the Nineteenth Amendment, the Constitution clearly empowered the President to appoint as well as dismiss the Prime Minister. This lack of independent authority and security of tenure is what made previous Prime Ministers under the 1978 Constitution to be regarded as mere peons. And the use and abuse of these provisions by President Chandrika Kumaratunga during the last period of cohabitation government between the two major parties in 2001-4 especially highlighted the inadequacies of these provisions as a democratic framework for the shared exercise of executive power.
The Nineteenth Amendment retained the power to appoint, subject to the important caveats mentioned above. But not only did the Nineteenth Amendment completely extinguish the President’s power of dismissal, but transferred the control of the Prime Minister’s tenure to Parliament. Therefore, aside from death, resignation, or on ceasing to be a Member of Parliament according to law, the Prime Minister can now only lose office when the Cabinet as a whole is dissolved upon being defeated in Parliament on the Statement of Government Policy, the Appropriation Bill, or a vote of no-confidence. Because these procedures for the removal of the Prime Minister are specifically mentioned – and were specifically introduced by the Nineteenth Amendment to address specific mischiefs – there can be no plausible assumption or argument whatsoever that any residual power in this respect remains in the hands of the President. To argue otherwise is to either deny the reality of the Constitution after the Nineteenth Amendment, or to defeat its democratising aims.
4. There is a discrepancy between the English and Sinhala text of the Constitution, whereby the Sinhala version grants the President the power to remove a sitting Prime Minister and reappoint another unilaterally.
This is one of the claims that has generated some of the most controversy in the last few days. It is true that there is a discrepancy between the Sinhala and English versions of Article 48(1). The relevant portions of Article 48(1) in English states: “On the Prime Minister ceasing to hold office by death, resignation or otherwise…the Cabinet of Ministers shall…stand dissolved and the President shall appoint a Prime Minister…” (italics added). The ‘or otherwise’ here is a clear reference to what follows in Article 48(2), which sets down the ways in which the Cabinet stands dissolved – and the Prime Minister ceases to function in office – by the loss of confidence of Parliament (discussed above).
The import of the Sinhala version is the same, except that instead of saying ‘by death, resignation or otherwise’ it states ‘by the removal from office or resignation or otherwise’ (dhoorayen ivath karanu labeemen ho illaa as veemen ho anyaakaarayakin). But the defenders of President’ Sirisena’s action claim that the words ‘by the removal from office’ in the Sinhala text conclusively prove that the President continues to have the power to dismiss the Prime Minister even after the Nineteenth Amendment.
This discrepancy is regrettable and it is evidently the result of the chaotic legislative process by which the Nineteenth Amendment was enacted in April 2015. However, does it make any material difference to the position of the Prime Minister by seeming to retain a presidential power of dismissal? The answer is clearly not. To state otherwise is to artificially strain the presence of this inadvertent discrepancy in the text to a legal significance it clearly cannot have, when the Nineteenth Amendment is considered as a whole.
Nowhere else in the Sinhala text is it contemplated that a presidential power of dismissal has been retained in the Constitution after the Nineteenth Amendment; everywhere else, and especially in Article 46 which is the most relevant other provision to this question, the text in the two languages is entirely consistent to the effect that this power has been removed from the President and conferred on Parliament (as discussed above). In any case, it is not only possible but also the more reasonable, logical, and harmonious approach to interpret ‘removal from office’ in the Sinhala text as referring to removal from office as set down in Article 48(2), rather than the incongruous and implausible argument that its effect is to retain a presidential power that from everything else it is clear it was the intention of Parliament to abolish when it enacted the Nineteenth Amendment.
President Sirisena’s apologists are therefore trying to argue that a set of four words in the Sinhala text held over from the Constitution prior to the Nineteenth Amendment, different from the English but without any substantive difference in outcome when applied to Articles 46 and 48 together, has a legal effect as significant as retaining the President’s power to dismiss the Prime Minister. This is neither credible nor creditable. They are denuding the Constitution as a whole of a consistent and harmonious interpretation and subverting Parliament’s intention behind the Nineteenth Amendment. Any fair-minded and informed observer would more readily accept the explanation that the discrepancy was simply the result of an oversight, which, while regrettable, is not fatal to the integrity of the Nineteenth Amendment framework. To accept the apologists’ fantastical argument is to bring in by the back door the presidential authoritarianism that Parliament was acting to curtail by enacting the Nineteenth Amendment to give effect to the historic mandate of 8th January 2015.
It is abundantly clear that the arguments being proffered to justify the unconstitutional attempt at a transfer of power are driven by a combination of ignorance, convenience, desperation, excessive partisanship, and in some cases, by pure malice and a total lack of scruple. These attempts have if anything aggravated the seriousness of the unprecedented power-grab we are facing, rather than shed light on the task of constitutional interpretation. As the thousands of citizens who gathered in Colombo on Tuesday in the hope of saving their democracy would no doubt wish, these arguments must be comprehensively defeated if a bleak and foreboding constitutional future is to be avoided in Sri Lanka.
Dr Asanga Welikala is a Lecturer in Public Law at Edinburgh Law School and the Director of the Edinburgh Centre for Constitutional Law.
Suggested citation: Asanga Welikala, ‘Nailing Canards: Why President Sirisena’s Actions Remain Illegal, Unconstitutional, And Illegitimate’ IACL-AIDC Blog (12 November 2018)