Summary of statements made by (Dr) Jayampathy Wickramaratne Concerning the Constitutional Crisis

Editors’ Note: This text is a summary of media briefings made by Dr Jayampathy Wickramaratne concerning the constitutional crisis sparked in Sri Lanka by the removal of Prime Minister Ranil Wickremesinghe on Friday 26 October. For further detail it may be useful to read the other posts collected under the Blog Symposium ‘Understanding the Unfolding Constitutional Crisis in Sri Lanka’, with the caveat that there is no formal connection between Mr Wickramaratne’s statements and the other texts.

Summary of statements made by (Dr) Jayampathy Wickramaratne, President’s Counsel and Member of Parliament at media briefings on the crisis triggered off by the purported unconstitutional removal of the Prime Minister

A constitutional crisis has been precipitated with President Sirisena purporting to remove Prime Minister Ranil Wickremasinghe and purporting to appoint Mahinda Rajapakse MP as Prime Minister on 26 October 2018.

Before the Nineteenth Amendment to the Constitution (which came into force on 15 May 2015) Article 43 of the Constitution provided as follows:

“The President shall appoint as Prime Minister the Member of Parliament who in his opinions is most likely to command the confidence of Parliament.”

The President also had the power to dismiss the Prime Minister. Article 47 stated:

“The Prime Minister, a Minister of the Cabinet of Ministers, any other Minister or Deputy Minister shall con¬tinue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he -

(a) is removed by a writing under the hand of the President ;

(b) resigns his office by a writing under his hand addressed to the President ; or

(c) ceases to be a Member of Parliament.”

Changes brought about by the Nineteenth Amendment

By the Nineteenth Amendment, Parliament was strengthened. The President’s power to dissolve Parliament at any time was severely restricted. Under Article 70 as amended, the “President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”

The appointment of the Prime Minister is now governed by Article 42 (4) which states: “The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.” Ministers, non-Cabinet Ministers and Deputy Ministers are appointed by the President only on the advice of the Prime Minister, vide Articles 44, 45.

The power of the President to remove the Prime Minister, a Minister or a Deputy Minister was thus taken away. A provision similar to former Article 47 (a) does not now appear in the Constitution. A Minister or a Deputy Minister can now be removed only on the advice of the Prime Minister, vide, Article 46 (3) (a). In such a situation, it is absurd to argue that the Prime Minister can be removed by the President at will, especially as former Article 47 was expressly repealed.

The holding of office by the Prime Minister is now governed by Article 46 (2) which states as follows:

“The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he –

(a) resigns his office by a writing under his hand addressed to the President;

or

(b) ceases to be a Member of Parliament.”

The three circumstances under which the Cabinet of Ministers stands dissolved are clearly set out in Article 48 (2):

“If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45.”

None of the above three situations have occurred. In fact, a motion of no-confidence brought against the Prime Minister was defeated by a comfortable majority of 46 votes on 04 April 2018. Nothing has changed thereafter. Even on the 25th and 26th of October 2018 several Bills, Orders and Resolutions presented by the Government were passed and these included the Finance Bill, a Money Bill.

It has been pointed out that the Sinhala version of Article 48 (1) the Constitution refers to the dissolution of the Cabinet of Ministers upon the “removal of the Prime Minister”. The English version, on the other hand, does not contain those words:

“On the Prime Minister ceasing to hold office by death, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45.”

However, there is no specific provision in the Constitution, in either the Sinhala or English versions, that empowers the President to remove the Prime Minister. In the absence of such a specific provision in the Constitution and the repeal, by the Nineteenth Amendment, of the specific provision that was in the original Constitution, it cannot be said that the President can remove the Prime Minister at will. As such, the words “removal of the Prime Minister” in the Sinhala version of Article 48 (2) can only be interpreted to mean the removal of the Prime Minister upon Parliament rejecting the Statement of Government Policy or the Appropriation Bill or passing a vote of no-confidence in the Government. Any other interpretation would be against the wishes of the People expressed at the Presidential Election held on 08 January 2015 and the intention of Parliament in adopting the Nineteenth Amendment.

Applicability of the Interpretation Ordinance

It has been argued that although there is specific constitutional provision that the President could remove the Prime Minister, section 14 (f) of the Interpretation Ordinance empowers the President to do so, being the person who appoints the Prime Minister. Section 14 (f) states: “for the purpose of conferring power to dismiss, suspend or re-instate any officer, it shall be deemed to have been and to be sufficient to confer the power to appoint him.”

Sri Lankan courts have consistently held that the Interpretation Ordinance has no application to the interpretation of the Constitution. The latest case is the Opinion expressed by the Supreme Court in SC Reference 01/2014 on 10 November 2014 when President Rajapakse requested an opinion on whether he could run for a third term under the Eighteenth Amendment. A Full Bench of the Supreme Court unanimously held that the argument that the Interpretation Ordinance applies to constitutional interpretation was erroneous.

The Supreme Court stated that the dicta of Sri Lankan courts shuts out the applicability of the Interpretation Ordinance and referred to the decision of the Supreme Court in SC Reference 03/08 where S.N. Silva CJ, Amaratunga J and Ratnayake J held that the constitutional provisions stand at the zenith of the normative triangle. The Court also referred to the case of Peter Attapattu v. People’s Bank, reported in 1997 Sri Lanka Law Reports volume 1 at page 208, where the Supreme Court stated that where a contrary position is found in the Constitution vis-à-vis the provisions of the Interpretation Ordinance, the constitutional provisions prevail. The Court also referred to several judgments of foreign courts and a statement by Retired Chief Justice Sharvananda in his book ‘Fundamental Rights in Sri Lanka’ at page 43.

National Government

Article 46 (1) of the Constitution as amended by the Nineteenth Amendment fixes the maximum number of Minister of the Cabinet Ministers at 30 and the total number of non-Cabinet Ministers and Deputy Ministers at 40. However, Article 46(4) provides that where the recognized political party or the independent group which obtains highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by Parliament.

It has been argued that as a National Government had been formed after the General Elections of August 2015 and now that the United People’s Freedom Front led by President Sirisena has withdrawn from the same, the Cabinet of Ministers stands dissolved.

However, Mr. Ranil Wickremesinghe was appointed Prime Minister after his United National Party won the highest number of seats at the General Elections held on 17 August 2015. President Sirisena appointed him as Prime Minister on 21 August 2015 as the Member of Parliament who in his opinion is most likely to command the confidence of Parliament. Soon thereafter, three Ministers were appointed on the advice of Prime Minister Wickremesinghe: Messrs. Mangala Samaraweera, Tilak Marapona and Wijedasa Rajapakse. When the new Parliament convened on 01 September 2015, Mr. Wickremesinghe was already Prime Minister.

On 03 September 2015, a resolution was introduced in Parliament by Prime Minister Wickremesinghe under Article 46 (4) to increase the number of Ministers as the United National Party had formed a National Government. The resolution read as follows: "Whereas the United National Party which obtained the highest number of seats in Parliament has formed a National Government, Parliament determines in terms of Article 46(4) of the Constitution of the Democratic Socialist Republic of Sri Lanka that the number of Ministers in the Cabinet of Ministers shall not exceed 48 and the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers shall not exceed 45." The resolution was passed.

The resolution that was passed did not mention the United People’s Freedom Alliance. In fact, not only the United People’s Freedom Alliance but the lone Member of Parliament who was elected from the Batticaloa District on the Sri Lanka Muslim Congress ticket also joined the National Government. Other members of the Sri Lanka Muslim Congress were elected on the United National Party ticket.

Thus, Mr. Wickremesinghe was not appointed to the office of Prime Minister upon him becoming the Member of Parliament who in the President’s opinion is most likely to command the confidence of Parliament after the United People’s Freedom Alliance joined the Government. He was appointed on the strength of his own party’s strength in Parliament.

Thus, the withdrawal of the United People’s Freedom Alliance has no effect on the appointment of Mr. Wickremesinghe as Prime Minister on 21 August 2015.

Further, the formation of a National Government is exclusively a matter for Parliament. The only consequence of a National Government ceasing to exist is that the number of Ministers goes down to 30 and total number of non-Cabinet Ministers and Deputy Ministers goes down to 40. In any case, the National Government continues as the Sri Lanka Muslim Congress continues to be in it.

Conclusion

From the above, it is clear that the purported removal of Mr. Ranil Wickremesinghe from the office of Prime Minister and the purported appointment of Mr. Mahinda Rajapakse as Prime Minister are unconstitutional and all subsequent steps taken are void ab initio.

Dr Jayampathy Wickramaratne is President’s Counsel and a Member of Parliament in Sri Lanka.

Suggested citation: Jayampathy Wickramaratne, ‘Summary of statements made by (Dr) Jayampathy Wickramaratne Concerning the Constitutional Crisis’ IACL-AIDC Blog, Symposium ‘The Constitutional Crisis in Sri Lanka’ (7 November 2018) https://blog-iacl-aidc.org/constitutional-crisis-in-sri-lanka/2018/11/6/summary-of-statements-made-by-dr-jayampathy-wickramaratne-concerning-the-constitutional-crisis