By Prof. Saviri Goonesekere
The President and his lawyers have argued that the removal of the Prime Minister on 26. 10. 2018 in the aftermath of the collapse of the current coalition government was lawful under the Constitution of Sri Lanka. His subsequent appointment of a new PM and Cabinet at his individual discretion, is also represented as being lawful under the Constitution.
This has been challenged by others, who have used legal arguments to support their views. They have argued that with the collapse of the coalition there is a President, a sitting Prime Minister and Cabinet, without any identification of the government and PM in office, who succeeded the collapsed coalition government.
In short there is no lawful government in office, because there are institutional gaps.
This represents a fundamental division of legal opinion.
In these circumstances the President’s actions must be guided not just by what his own lawyers advise, but by his critically important duty to “respect and uphold the Constitution” (Art. 33 (1) (a) as amended by 19th Amendment).
In order to do so, the President has an obligation to immediately summon Parliament and resolve this constitutional crisis. He cannot seek to carry on governance outside the parameters of Constitutional norms and procedures, at his discretion, relying on disputed legal opinions.
Sri Lanka’s Constitution does not provide for governance of this nature by Presidential decree and discretion, without a government formed in conformity with the Constitution. The following reasons are given to support this view:
a) The President has a duty under the Constitution to recognize the sovereignty of the People which includes the powers of government (Art. 3). That concept of the Sovereignty of the People is reflected in the granting of executive [presidential] powers to the president, and judicial power to the courts. It is also reflected in the powers and responsibilities of Parliament (Art. 4).
Art.33 A in the 19th amendment incorporates the concepts of an earlier and repealed Art. 42 when it clarifies that the President as the chief executive is responsible to Parliament for the “due exercise and discharge” of his executive powers.
Our Constitution therefore clarifies that the President cannot act on his own outside the scope of his responsibility to Parliament.
b) Parliament has therefore a right to be informed of any current constitutional crisis. It must be appraised of the crisis in governance caused when a coalition partner leaves the government. Parliament must be informed of the manner in which the government is functioning in this situation.
c) The current reality is that since the 26th of October the President has at his discretion appointed a new PM and Cabinet of Ministers. It is relevant in this regard to consider whether he has conformed to the provisions of the Constitution.
The Constitution’s provisions on the appointment and termination of appointment of a Prime Minister clarify that, the President has not been given an open ended personal discretion on this important matter. After the 19th Amendment the PM ceases to hold office in specified circumstances. When those circumstances take place, the President has a duty to summon Parliament to inform them of the situation, and if necessary, identify the person who is likely to command the support of the majority of elected members of parliament and also form a government (Art. 42 (4). This article is grounded in the concept of the peoples’ sovereignty in a parliamentary democracy, and the President’s accountability to Parliament in governance.
These norms were reinforced in the 19th Amendment which limited the Presidential powers of removal of the Prime Minister. Separate Articles (Art. 46 (2) 48 (1) and 48(2) outline the different circumstances in which the PM ceases to hold office, thus departing from an earlier concept of Presidential discretion in removing the PM.
Consequently any provisions on removal from office by an appointing authority in the Interpretation Ordinance which refers to statutes are inapplicable, as they conflict with the Constitution. Similarly, if a Sinhala translation of the Constitution has a reference to “removal”, that word cannot be used to undermine the specific provisions on termination of the term of office of a PM, and argue for an open ended, discretionary, and different concept of Presidential “removal”.
To adopt such an interpretation would be a flagrant violation of the purposive interpretation of the law and the Constitution in light of substantive specifically stated grounds for a PM ceasing to hold office.
The Constitution is the superior basic law of the country. The Constitution (after the 19th Amendment) clarifies that losing the confidence of parliament is the only ground on which the PM ceases to hold office, when the other grounds stated in the specific articles do not apply.
d) Since his coalition partner and the PM enjoyed the confidence of Parliament, and were able to form a government, the President had a duty to immediately summon Parliament, when the coalition government was dissolved. This is because he has a duty to ascertain whether the current PM or anyone else [in Parliament] enjoys that confidence of the majority of MP’s and can form a government, and be appointed as PM. These are core norms and procedures of parliamentary democracy embedded in the Constitutional provisions on the appointment to office of an elected government, and the PM of the country.
e) The President fails to fulfill his Constitutional duties when he seeks to govern with those he appoints at his discretion as PM and cabinet Ministers, without going to Parliament, and identifying the lawful government and Prime Minister who will assume the responsibilities of governance. Therefore, if he does not summon Parliament immediately, MPs outside the group who support him can demand that Parliament should be summoned.
f) When such a demand is made to the Speaker, he has an obligation to request the President to summon Parliament immediately to prevent the functioning of an unconstitutional unlawful government in violation of the Constitution.
If the President fails to respond and continues to prorogue Parliament without immediately identifying the government and PM who will succeed the dissolved coalition government, the Speaker has a duty and responsibility to consult with the Party leaders. If a consensus does not emerge, he has a constitutional responsibility to the Nation to summon Parliament. In doing so he should inform the President that this action is to prevent the President violating his constitutional responsibility under Art.33A to govern the country in partnership with Parliament.