Constitutionality: Comparing appointment of Prime Minister in 2015 & 2018

 

Suddenly a bevy of ‘constitutional experts’ have come into the scene. Where were they in 2015 one wonders. The situation is this. We have the same President but 2 different Prime Ministers. The issue is this. Those that are now coming forward holding the slogans of ‘abiding by the constitution’ quoting the ‘constitution’ questioning the ‘legalities’ etc were not to be seen or heard in 2015 and since when a list of illegalities were taking place. Let us compare these two scenarios.

January 2015 Sri Lanka held a Presidential election. 

The presidential election is a very straightforward election where all registered voters in Sri Lanka vote for a President who must secure 50% of the votes cast. At the 2015 Presidential election the President obtaining 62lakh votes became Maithripala Sirisena who left the SLFP-UPFA & contested under the swan symbol backed by the UNP, TNA, SLMC, JVP and endorsed by some 50 civil society organizations.

At the time of taking oaths an unprecedented move occurred. Immediately after taking oaths as President, the President-elect appointed then Opposition Leader Ranil Wickremasinghe as the Prime Minister. Ranil Wickremasinghe in January 2015 had only 46UNP MPs represented in Parliament. The question everyone asked was how can the President-elect  appoint Ranil Wickremasinghe because the election was a Presidential & not Parliament while Ranil had only 46MPs in Parliament.

The response was ridiculous. Of course the President can appoint Ranil Wickremasinghe, he promised so in his election pledges & on election platforms”. What if the President in the run up to elections promised to make Donald Trump, Theresa May, Putin or Trudeau as Prime Minister, would their answer also be the same? We are unlikely to get a response.

Be that as it may, there was another more serious issue. Ranil Wickremasinghe was appointed without removing the sitting Prime Minister D M Jayaratne and D M Jayaratne neither resigned nor was removed from his position as PM. So how was Ranil appointed PM without removing the sitting PM? None of the constitutional experts now questioning the constitutionality of matters wish to answer this question.

What is the legality & constitutionality of the January 2015 Prime Minister’s appointment. 

Sri Lanka held a Presidential election not a General Election and previously too the country functioned with a President from one party & a Prime Minister from another. Moreover, if we are to presume that a Presidential election held after which the President-elect can immediately appoint a Prime Minister, then we should next ask the question why waste money & time on holding General Elections!

Ranil was clearly without any majority support in Parliament – with 46MPs he lacked the majority support. Therefore, from January to August 2015 there is a big question as to the legality & constitutionality of Ranil Wickremasinghe as Prime Minister which is a more important legal & constitutionally unanaswered question than the present appointment of Mahinda Rajapakse as PM. No one wants to answer or even raise this as a debate topic.

It is interesting that Constitutional maestro Jayampathy Wickremaratne quotes 42(4) claiming that the appointment of a PM can arise ‘only when there is a vacancy by virtue of a fresh election, resignation or no-confidence motion’. How come all 3 did not exist in January 2015 and Ranil was appointed as PM?

http://www.dailymirror.lk/157477/Two-gazettes-issued-removing-Ranil-and-appointing-MR-as-PM?utm_source=dlvr.it&utm_medium=facebook two gazette notifications removing Ranil and appointing Mahinda

Therefore, there is a serious question of legality & constitutionality to the appointment of Ranil as PM in January 2015 and he functioned as PM till August 2015 Parliamentary Elections after which he became the PM. However, from Jan to Aug 2015 every action & seal by Ranil as PM has to be legally questioned including the 19amendment. 

Look at the hypocrisies at play

In January 2015 according to N. Selvakkumaran (Sri Lanka Guardian – Appointment of the Prime Minister: Constitutional or Not?”) says it is the opinion of the President that matters here. There is no express provision in the Constitution which requires a Prime Minister to demonstrate, through an affirmative vote of confidence, his or her ability to command the majority support of Parliament”

If this argument applies to the appointment of Ranil Wickremasinghe in 2015 as PM shouldn’t it also apply to Mahinda Rajapakse’s appointment as PM?

Note how Selvakkumaran answers the constitutional position & political legitimacy of Ranil as PM in 2015, he says candidate Maithripala Sirisena made it very clear in many political platforms and through media interviews, during the period of canvassing that he would appoint Ranil Wickremasinghe as the Prime Minister once he won the Presidential Election & took oaths as the President. He had to keep his word to the people of this country”. If this is so then we don’t need a constitution or a supreme court to determine things legal. A President can make campaign promises & follow through on them. But what if he doesn’t??? This clearly displays a very lame & immature response to a very legal argument.

October 2018 appointment of Mahinda Rajapakse as Prime Minister by the same President that appointed & removed the immediate-past Prime Minister Ranil Wickremasinghe.  

How was this appointment done? Only after getting all of the SLFP MPs in the National Unity Government to resign and issuing a gazette notification to the effect that the Prime Minister Ranil Wickremasinghe was removed as PM & issuing another gazette notification informing the appointment of Mahinda Rajapakse as Prime Minister.

The constitutional experts in the form of Friday Forum, Church of Ceylon and the various online petitions now in circulation completely ignore the fact that there is no National Unity Government to claim that the President cannot remove Ranil as Prime Minister. So they are quoting part of the 19a & totally disregarding the Article clauses relevant to the National Government. In this manner they are totally fooling the masses who need to understand what context of 19a is applicable to the situation.

Arguments in favor of Mahinda Rajapakse’s appointment as Prime Minister

• Article 42 (4) is cited as reason for the removal of Ranil Wickremasinghe as Prime Minister
• Article 42 (4) clearly states that it is nothing but the ‘President’s opinion’ that decides who he feels has confidence in Parliament. It is irrelevant that any party has the numbers to stake claim as having the confidence of the House.
• National Unity Government’ ceased to exist after the 26MPs of the SLFP withdrew support to it.
• We have forgotten that the 2 year MOU signed between UNP & SLFP also ceased to exist from August 2017.

The powers of the President is superior to that of the Prime Minister established clearly via

1. Article 30 (1) 19a – There shall be a President of the Republic of Sri Lanka who is the Head of State, Head of the Executive & of the Government”
2. Article 42 (3) – President is Head of the Cabinet of Ministers” while the Cabinet of Ministers is charged with the direction & control of the Government” – Article 42 (1)
3. This empowers the President to deem whom he feels is suited to direct & control the Government & nowhere in the 19a does it say that the President’s choice in the Prime Minister has to be from the party that has the largest MPs in Parliament. But the discretion of the President is important because he has to appoint someone as PM who will face obstacles in functioning as the PM. What needs to be clearly pointed out is that the President’s choice in selecting a PM who does not have a majority in Parliament is not unconstitutional.

Arguments against President Proroguing Parliament

• Article 70(a) empowers President to prorogue Parliament
• Article 70(3) requires President to fix date for next session which cannot be more than 2 months (President has fixed Parliament to reconvene on 16 Nov 2018)
• Article 70 (3) (i) permits the President to summon Parliament even 3 days after he prorogues Parliament.

19a key provisions to note

• Government to comprise only 30 MPs unless in case of National Government
• Cabinet formed by National Government will automatically get dissolved when a party leaves the National Government (withdrawal of SLFP MPs from National Government meant that the cabinet automatically stood dissolved)
• If cabinet is automatically dissolved the post of Prime Minister also falls vacant.
• President is legally & constitutionally empowered to appoint new Prime Minister whom he feels commands the confidence of the House.

If we are talking about legality & constitutionality of appointments then we need to return to the appointment of Ranil Wickremasinghe in January 2015 & question that legality & constitutionality first – this would legally question every agreement he has signed as PM, every appointment made, every decision taken & it would even question the validity of the 19a. Legal experts need to address this without partition politics.

As for people who are coming forward to defend either party in particular the US, UK, EU, India, Japan, Canada et al they must be reminded that they are flouting Geneva diplomatic protocols interfering into the internal affairs of sovereign states.

Their credibility is questioned when they have been silent throughout a plethora of illegalities & irregularities that their favourites have been committing with virtual impunity – from August 2015 to February 2018 no elections were held throughout Sri Lanka inspite of enforcing independent commissions (not a hum from the angels of democracy), a new constitution is being drafted by them according to what suits their agenda (all violations of Sri Lanka’s sovereignty), Bill to compensate the LTTE which remains banned in Sri Lanka and by the very countries that are not taking action against the LTTE fronts is an affront to all the victims of LTTE, Bills are being passed without transparency, cheating the public & without majority vote, trade pacts are being signed in secrecy compromising national security and natural assets of the country and no one in the West/India are questioning these, all types of controversial figures are getting appointed to key roles & total silence because they are the one’s selected to take care of the finer details before these too are sold.

On top of all this, the person they packaged a campaign to bring to power as President is even going to the UN and saying there is a plot to kill him and he comes on State TV & addresses his people to say that the reason to sack the PM was the attempt to assassinate him. Not one of the countries or the civil society organizations that campaigned to bring him to power as President are calling for an investigation or arrest of those planning to kill the President.

Furthermore, everyone today presenting arguments questioning the legality of matters need to wake up to some realities and eat humble pie for they know very well that the 19a came about not for the interest of the country or to uphold democracy but was a very craftily drafted document that plotted to subtly transfer powers of the President to the Prime Minister, insert provisions that would deny members of the opposition to contest future elections (clauses like dual citizenship, limiting presidency term, removing president’s right to dissolve parliament, cap on age limit to contest presidency) and also including the provision of who will lead in case of a vacancy which gels well with the conspiracy to bump off the President. For the luck of the country & the karmic punishment of the perpetrators they find their plans all exposed & they are in a total mess because what they thought would be their cake has now passed on to their enemy.

All we can say is – what goes round comes round & it isn’t very pretty for those who connive & try to cheat their way into climbing to power & remaining in power.

 

Shenali D Waduge