Image: From Vikalpa.
This legal opinion was prepared by Gehan Gunatilleke, Dinesha Samararatne, Kalana Senaratne and Asanga Welikala in response to a request made by Dr Jayampathy Wickramaratne, P.C, Member of Parliament.
Since 26th October 2018, Sri Lanka has been in an unprecedented political, economic, and constitutional crisis. The crisis was triggered by a series of decisions taken by President Maithripala Sirisena, each of which, in our view, is in violation of the Sri Lankan Constitution. This opinion aims to offer responses to several constitutional questions that have arisen with regard to the developments since 26th October. These questions relate to the consequences of a party withdrawing from a National Government, the appointment and removal of a Prime Minister, discrepancies between the Sinhala and English versions of the Constitution, and the dissolution of Parliament.
1. Did the withdrawal of the United People’s Freedom Alliance (UPFA) from the National Government result in the vacation of the post of Prime Minister?
There is no constitutional provision that stipulates 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, or the office of Prime Minister becoming vacant. Article 46 (4) and (5) of the Constitution, which deals with a National Government, makes no reference whatsoever to such consequences.
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. The President can do this 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 (see articles 45(1) and 46 (3)).
2. Is the President 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 Parliament?
The Constitution does not authorise the President to unilaterally dismiss the Prime Minister, based on a subjective opinion of the President, as to which Member of Parliament commands the confidence of Parliament. Other than for death, resignation, or on ceasing to be a Member of Parliament, the Prime Minister vacates office only when Parliament has signified its loss of confidence in the Government as a whole, according to the circumstances and procedures specifically established by the Constitution.
Article 42(4) provides that the President shall appoint the person ‘who, in the President’s opinion, is most likely to command the confidence of Parliament’. The literal meaning of this text has to be given meaning in light of the purpose for which this power has been vested in the President. The power of the President of the Republic is a constitutional power to be exercised in the public interest and in light of relevant facts. It is not something that is personal to him that can be used in any way that he pleases.
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 partisan political interests. Consequently, the reference in article 42(4) to the opinion of the President is not a reference to a private and subjective opinion, but an opinion that can be formed only by reference to the will of Parliament.
Moreover, article 42(4) deals with the appointment of a Prime Minister only where the office of Prime Minister is vacant. But the situation that arose on 26th October 2018 was totally different, as there was a Prime Minister in office enjoying the confidence of Parliament. The Constitution does not contain any explicit provisions that empower the President to dismiss the Prime Minister.
After the Nineteenth Amendment was enacted in 2015, the Prime Minister can only cease to hold office by death, resignation, by ceasing to be a Member of Parliament, or if the Government as a whole has lost the confidence of Parliament by a defeat on the Statement of Government Policy, the Appropriations Bill, or a vote of no-confidence (see articles 46(2) and 48). Since the Constitution specifies these ways in which the Prime Minister ceases to hold office, and has removed the previous power of the President to remove the Prime Minister at will, it follows that there are no other ways through which the office of Prime Minister can become vacant. In particular, the President can only appoint another Prime Minister where the serving Prime Minister has lost office in any one of these ways.
It should be added that as a consequence of the presidential two-term limit being reintroduced by the Nineteenth Amendment, the President should not appoint a Member of Parliament to the post of Prime Minister who is constitutionally disqualified from assuming the presidency in a situation where that office becomes vacant before the expiry of the incumbent’s term of office.
One of the critical – but much ignored – aspects of the purported appointment of Mahinda Rajapaksa MP as the Prime Minister is the fact that he is disqualified from holding the office of President, since no person who has been elected twice to the office of President is qualified to be elected to such office (see article 31(2) and article 92(c)). Where the office of President becomes vacant, Parliament elects as President one of its Members who is qualified to be elected to the office of President for the unexpired period of the term (article 40(1)(a)). This clearly disqualifies any person who has been twice elected from assuming the office of President in this particular situation.
We highlight this issue, simply to make it clear that the decision to appoint a new Prime Minister on the 26th of October failed to consider the broader legal and political factors that deserved the serious attention of the President.
3. Does the discrepancy between the English and Sinhala text of the Constitution, mean that the Sinhala version grants the President the power to remove a sitting Prime Minister and reappoint another unilaterally?
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 out the ways in which the Cabinet stands dissolved – and the Prime Minister ceases to function in office – by the loss of confidence of Parliament.
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 actions claim that the words ‘by the removal from office’ in the Sinhala text conclusively prove that the President continues to hold the power to dismiss the Prime Minister even after the Nineteenth Amendment.
This discrepancy is regrettable, and is evidently the result of an oversight during the legislative process by which the Nineteenth Amendment was enacted in April 2015. However, this discrepancy makes no material difference to the process through which a Prime Minister may be removed from office. Neither the Sinhala nor English versions of article 48(1) refer to the President’s power to remove a Prime Minister. Thus, treating this apparent discrepancy as a reference to such a power of removal is incongruent in terms of the Constitution read 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 provision to this question, the text in both Sinhala and English is entirely consistent to the effect that this power has been removed from the President and conferred solely on Parliament. 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 Parliament clearly intended to abolish when it enacted the Nineteenth Amendment.
Any fair-minded and informed observer would more readily accept the explanation that the discrepancy was the result of an oversight, which, while regrettable, is not fatal to the integrity of the Nineteenth Amendment framework.
4. Did the President have the power to dissolve Parliament?
The President has no power to dissolve Parliament in the first four and a half years of its five-year term. Article 70(1) clearly provides that the President’s power to dissolve Parliament does not come alive ‘until the expiration of a period of not less than four years and six months from the date appointed for its first meeting’, except if Parliament requests the President to dissolve Parliament by a resolution passed by a two-thirds majority of its Members, including those not present. It has been argued that article 70(1) has to be read subject to the general and empowering clause found in article 33(2)(c). Article 33 describes several powers that are vested with the President including the power to ‘summon, prorogue and dissolve Parliament.’ However, this general power has to be reconciled with article 70(1), which restricts the power of the President to dissolve Parliament. Any other interpretation would subvert the meaning and purpose of article 70(1), which is clear.
The Parliament that was elected in August 2015 had its first sitting on the 1st of September 2015. Accordingly, the President’s power to dissolve Parliament will come alive only in March 2020.
5. Did the Supreme Court have the authority to stay the operation of the Gazette Extraordinary (No 2096/70) of 9th November 2018 that purported to dissolve Parliament?
The Supreme Court has the jurisdiction to determine the legality and the procedural propriety of the exercise of the President’s power to dissolve Parliament according to the Constitution. Prior to the enactment of the Nineteenth Amendment, the President enjoyed immunity from any kind of legal proceedings before a Court of Law. Article 35(1) of the Constitution, as amended by the Nineteenth Amendment, permits ‘any person’ to file a petition under article 126 against the Attorney-General ‘in respect of anything done or omitted to be done by the President, in his official capacity.’ Article 126 provides that a petition alleging the violation or imminent violation of a fundamental right can be filed before the Supreme Court within one month. If the Court grants leave to proceed, it will make a determination on the petition. In doing so the Court has the power to grant ‘relief’ or ‘make such directions’ that it would consider to be ‘just and equitable’.
In current proceedings, several petitioners have alleged that their right to equality, recognised by article 12(1), was violated by the President when he issued a Gazette notification purporting to dissolve Parliament. The Supreme Court has consistently interpreted the right to equality to include the right to be free from the arbitrary use of executive or administrative power. The petitioners requested the Court to grant interim relief in the form of suspending the Gazette notification until the conclusion of the case. Having heard all parties, the Court decided on the 13th of November to grant interim relief, and suspended the operation of the Gazette purporting to dissolve Parliament.