(This legal opinion was prepared in response to a request made by Dr Jayampathy Wickramaratne, P.C, Member of Parliament By Gehan Gunatilleke,University of Oxford , Dinesha Samararatne, University of Colombo,Kalana Senaratne, University of Peradeniya and Asanga Welikala, University of Edinburgh)
Since 26 October, 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 26 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?
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