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Legal opinions vary on legality of President’s move
View(s):Mixed views were expressed by legal experts on the legality of President Maithripala Sirisena’s move to replace Ranil Wickremesinghe as Prime Minister.
Former Senior Additional Solicitor General Wasantha Navaratne Bandara PC said the President, as the first citizen, has the foremost responsibility to uphold and protect the constitution.
“In terms of the 19th Amendment to the Constitution, the President “shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament,” he said, citing Article 42(4).
Mr. Bandara said that while there was no question of the fact that the appointment is subject to presidential discretion, the article itself demands that the presidential discretion should be exercised subject to the condition “most likely to command the confidence of Parliament”.
“Therefore, when a crisis situation arises, leading to the question as to how the president’s opinion was formed, the constitution itself imposes a moral obligation on the President to explain as to how the appointee is ‘most likely to command the confidence of Parliament’. It is more so, when the whole country and the international community so demands. That explanation would be the foremost certificate that the president protects democracy,” he said.
Manohara de Silva, PC said the President’s action in removing Ranil Wickremesinghe and replacing him with Mahinda Rajapaksa as Prime Minister was “perfectly legal and constitutional.”
“It is the sole discretion of the President to form an opinion as to who commands the confidence of the majority in Parliament,” Mr. de Silva said.
He said that, in terms of the 19A, the national government collapsed and the Cabinet exceeding 30 members automatically ceased when the UPFA withdrew its support. Therefore, the President could constitute a new Cabinet and appoint a new Prime Minister.
Holding a similar view was Bar Association of Sri Lanka (BASL) President U. R. de Silva, PC. He said that when a coalition partner left the unity government, the Cabinet automatically stood dissolved as the 19th Amendment stipulated that the Cabinet could not exceed 30 members.
“Accordingly, the Prime Minister, too, ceases to hold office. In such a situation, the President is empowered to appoint a new Prime Minister who, in his opinion, commands the support of a majority of members in Parliament. President Sirisena has appointed Mahinda Rajapaksa as Prime Minister based on these grounds. However, we now have a situation where Mr. Wickremesinghe also insists that he continues to hold the office of PM,” he said.
He said that, in this context, whoever wished to continue as PM must show his majority support in Parliament. “With Parliament having been prorogued, this is not immediately possible. Parliament has been prorogued on the grounds that a new Cabinet needs to be appointed, along with new ministry secretaries and heads of government institutions, as well as to draft a programme for the new Government. These grounds can be accepted. But since this is the first time in history that such a situation has arisen under the 19th Amendment, any party has the right to go before the Supreme Court to seek its interpretation regarding the matter,” he said.
Former BASL president Geoffrey Alagaratnam, PC said the present political situation did not augur well for the country. “Whilst the government has erred in several matters, and arguments may be adduced on both sides to support their positions by resorting to the constitutional provisions and past practices, the state of affairs does not augur well for the country and it offends basic standards of civility required, if not demanded, of persons in public life,” he said.
Political analyst and constitutional lawyer Dr. Jayatissa de Costa P.C. said the government would be able to exploit the provisions in the 19th Amendment with regard to the number of members in the Cabinet if the UPFA got the support of some UNP members.
“Under 19A, the number of the Cabinet Ministers is restricted to 30, and the State and Deputy Ministers are restricted to 40 if a single party forms the government. However, the situation is different if a national government is formed, Dr. de Costa said. In such instances Parliament can determine the number of members in the Cabinet as well as number of non-Cabinet ministers,” he said.
A National Government has been interpreted by 19A as one formed by the recognised political party or the independent group which obtains the highest number of seats in Parliament together with the other recognised political parties or the independent groups.