Dr Nihal Jayawickrama
Article 33A of the Constitution states that the President “shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law”. Parliament, therefore, has a constitutional duty to call upon the President to account for his actions, especially if it appears that he has acted outside and beyond his powers. Having done so, Parliament may, by a resolution passed with a majority vote, decide to censure him, or request his resignation. A self-respecting President will know how to respond to such a resolution. Alternatively, Parliament may remove the President from office, but only if two-thirds of its membership so resolve, following a determination of the Supreme Court that the President has been guilty of intentional violation of the Constitution, treason, bribery, misconduct, corruption or an offence involving moral turpitude.
Last month, seven Judges of the Supreme Court unanimously held that the President had acted in violation of the Constitution when he purported to dissolve Parliament. That is an impeachable offence. His defence that he is “not a lawyer”, and that he acted “on the advice of eminent President’s Counsels” is unacceptable because the language of the Constitution could not have been clearer: “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”. Therefore, Parliament is entitled to ask the President whether he was indeed incapable of understanding the meaning of that simple sentence.
The President’s journey of intentionally violating the Constitution began with his purported dismissal, on an October Friday night of Prime Minister Ranil Wickremasinghe who had earlier in the year secured a decisive vote of confidence from Parliament. The Constitution does not grant the President the power to remove the Prime Minister. In fact, that power which Presidents previously enjoyed was abolished in April 2015 by the 19th Amendment which his own Government introduced. Therefore, Parliament is entitled to ask the President whether that unconstitutional act was due to loss of memory or was deliberately intended to facilitate yet another unconstitutional objective.
The President’s unconstitutional journey continued when he appointed Mahinda Rajapaksa to the office of Prime Minister. It would have been evident to anyone who had acquired the ability to count up to 225, that Rajapaksa did not have the support of half that number plus one of Members of Parliament. Therefore, Parliament is entitled to ask the President by what process of reasoning he reached the conclusion that Rajapaksa was the Member of Parliament “who is most likely to command the confidence of Parliament”.
The President’s next unconstitutional act was to prorogue Parliament. Of course, he has the power to do that, but constitutional convention demands that that power be exercised on the advice of the Speaker or the Prime Minister, usually for the purpose of providing the Members a recess or facilitating the conduct of government business. Therefore, Parliament is entitled to ask the President, who acted on his own initiative disregarding parliamentary convention, whether his action was motivated by an ulterior objective, such as providing Mahinda Rajapaksa time to “secure” a majority.
In a subsequent widely-publicized television interview, the President claimed that Rajapaksa failed in the endeavor to secure a majority because Members of Parliament had demanded the unconscionable price of five hundred million rupees to cross-over. Therefore, Parliament is entitled to ask the President whether, in addition to being aware of that criminal activity, he himself had participated in that endeavor, either directly or indirectly. To have done so would constitute “bribery, misconduct, or corruption” – all further grounds for the impeachment of the President.
When the President defiantly ignored three repeated resolutions of Parliament expressing a lack of confidence in the “Government” of Mahinda Rajapaksa, he was deliberately acting in violation of Article 48(2) which states that “If Parliament passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved”. He compounded that offence when he insisted that uncomplimentary references to him in resolutions passed by Parliament be deleted. Will Parliament choose to ignore this challenge to its constitutional authority?
When the President reportedly refused to act on the Prime Minister’s advice and declined to appoint certain Members of Parliament as Ministers, he was acting in violation of the Constitution. Under the 19th Amendment, he is required to act on such advice. Indeed, the President’s only function at the stage of Cabinet formation is to determine the number of ministries and to assign subjects and functions to such ministries. Thereafter, the choice of Ministers to be in charge of the ministries so determined is entirely a matter for the Prime Minister. Therefore, Parliament is entitled to ask the President by what constitutional authority he declined, as reported, to accept the Prime Minister’s choice of Ministers.
Under the Constitution, only a Member of Parliament may be appointed a Minister, and all the subjects and functions of government are required to be assigned to such Ministers. However, a strange, unprecedented, transitional provision in the 19th Amendment enables Maithripala Sirisena, while he holds office as President, to “assign to himself the subjects and functions of Defence, Mahaweli Development and Environment”. He has now availed himself of that provision. He has gone further and assigned to himself the “Police” and the “Government Printer” and placed them within the Ministry of Defence. The police force is responsible for internal security and the investigation of crime, while “Defence” means defence of the State from external forces. Similarly, what the Government Printer has to do with “Defence” is perhaps comprehensible only to the President. Therefore, Parliament is entitled to sanction the President for arrogating to himself subjects and functions of government which the Constitution explicitly requires to be assigned to a Minister who is a Member of Parliament.
Under the Constitution, the President is the Head of the Government. Of his own choice, Maithripala Sirisena is also the President of the SLFP and of the UPFA which is a coalition of like-minded political parties that includes the SLFP. Mahinda Rajapaksa, who claims to be a member of the SLFP/UPFA, is reportedly now the Leader of the Opposition. Therefore, Parliament is entitled to ask the President to explain how he can concurrently serve as Head of the Government and as Head of the Opposition, and whether he does not understand that functioning simultaneously in both capacities is a gross violation of the fundamental democratic basis of the Constitution.
During the tumultuous events of the past two months, when the President engulfed the Republic in an unprecedented state of anarchy, it was the Speaker of Parliament Karu Jayasuriya who, with exceptional courage, maturity and dignity, facilitated sanity to be restored. It is now his constitutional duty to enable Parliament to exercise the powers conferred on it by Article 33A by summoning the President before the Bar of Parliament and requiring him to account for his repeated and intentional violations of the supreme law of the land – Our Constitution.