Sunday Times 2
A Constitutional crisis- undermining the Constitution
The present crisis in Sri Lanka, generated first, by the appointment of a second Prime Minister by the President, while the first had not been properly removed from, or ceased to hold office under the Constitution, has created a very serious constitutional dilemma. The crisis was compounded by the dissolution of Parliament. The Gazette Notification pronouncing the dissolution of Parliament was challenged in fourteen separate Petitions and a three judge bench of the Supreme Court stayed the application of all actions contemplated in the notification until December 7, 2018.
The Gazette Notification pronouncing the dissolution of Parliament was challenged in fourteen separate Petitions and a three judge bench of the Supreme Court stayed the application of all actions contemplated in the notification until December 7. Pic by Ishanka Sunimal
That the President’s decisions were based on a reliance on the Constitution cannot be denied. But on what specific provisions in the 19th Amendment is sometimes unclear. The 19th Amendment should have been the sole basis for the President’s decisions since that law in reality governs all of the actions taken by the President. The 19th Amendment to the Constitution is in itself replete with inconsistencies. Therefore, the present crisis has also been seriously affected by the structural weaknesses in the 19th Amendment. Notwithstanding, it is the 19th Amendment which must be examined to attempt to find, at least, some objectivity for the decisions taken.
Appointment of a Prime Minister under the 19th Amendment
The original Chapter VIII of the Constitution having been repealed in its entirety, the matter of appointment of a Prime Minister and the Cabinet is now guided by the 19th Amendment. The exactly applicable provision is Article 42(4):
“42(4) The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.” (emphasis added).
It appears that the President in appointing Mahinda Rajapaksa, as Prime Minister, had recourse to this provision. It does give the President flexibility to use his subjective judgment. A prima facie reading of the Section provides the President with this appointing authority. (Incidentally, the original provision of the Constitution Article 43(3) has the same language with a minor change – the words “in his opinion” have been changed to “in the President’s opinion” – perhaps for avoidance of any doubt, to ensure that it is the President’s subjective opinion that matters).
But it can be equally and persuasively argued that the President’s decision cannot be based on a purely subjective opinion. First, that subjective opinion has to be based on the fact that the individual chosen to be Prime Minister is “most likely to command the confidence of Parliament.” Hence, the President’s subjective judgment must necessarily be substantiated on some reasonable test on which to justify his opinion. And that can only be accomplished through reference to all Members of Parliament the nomination of the specified Member of Parliament to be appointed as Prime Minister. In the tradition of well-established democratic principles, the nominee should at least have the approbation of a simple majority in Parliament. That did not happen in the case of the purported appointment of Mahinda Rajapaksa as Prime Minister.
Second, the reasonable intent of the drafters of the original Constitutional provision that is also mirrored in the 19th Amendment cannot be read to anoint such powers of appointment on the President in any and under all circumstances. Generally, only two clear situations can be foreseen in the context of the Constitution read as a whole for the appointment of the Prime Minister. The first is upon the conclusion of a general election; or second, where the Government has lost its Parliamentary majority under specified circumstances. In the latter circumstances, and as a practical matter, the Government is unable, therefore, to carry out its legislative functions and Parliament is dissolved by the President. Clearly, these are the only two circumstances under which the President can exercise his power of appointment of a Prime Minister, albeit in accordance with the President’s “opinion”. There is no evidence however, that any of these events had, in fact, ever occurred before Mr. Rajapaksa was appointed as Prime Minister.
The Office of the Prime Minister
One of the most substantive changes brought about in the 19th Amendment was to legislate for transfer of some of the President’s executive powers, prescribed in the Constitution, to the Prime Minister. The objective of the applicable provisions for such a transition is clearly evident from the language of Article 46(2) of the 19th Amendment. Article 46(2) states thus:
“(2) The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless:
(a) he resigns his office by a writing under his hand addressed to the President; or
(b) ceases to be a Member of Parliament.”
The current events which have occurred do not show any evidence that any of these elements were present or had occurred. At the time of the appointment of Mr. Rajapaksa as Prime Minister, the Cabinet of Ministers appointed by the President, upon Prime Minister Ranil Wickremesinghe’s advice, was still functioning. Neither had Prime Minister Ranil Wickremesinghe resigned his office by writing to the President nor had he ceased to be a Member of Parliament. Therefore, a reasonable conclusion which can be drawn is that Prime Minister Ranil Wickremesinghe, could not have been properly removed from office under Article 46(2) and, therefore, remains the constitutionally appointed Prime Minister. The result is a wholly abstract situation of having two competing Prime Ministers. This could never have been foreseen or intended under the Constitution.
Is the Prime Minister’s term in office limited to the term of the Cabinet of Ministers?
An argument has been advanced by some commentators that the prefatory language in Article 46(2) of the 19th Amendment can lead to a conclusion that the Prime Minister’s holding of office is limited to a “period during which the Cabinet of Ministers continues to function under the Constitution.” It is to the analysis of this line of argument that we must now turn.
In order to determine whether there is such an intended limitation it is necessary to examine the specific provisions in the 19th Amendment that speak to the appointment of Cabinet Ministers, removal of Cabinet Ministers and the time frame provided in the 19th Amendment for the Cabinet of Ministers to function.
Articles 43(1) and 43(2) of the 19th Amendment give the power of appointing of each Minister of the Cabinet of Ministers to the President, but always “on the advice of the Prime Minister.” This task was carried out by the President in 2015, to appoint a Cabinet of Ministers upon the advice of Prime Minister Ranil Wickremesinghe. And they continued to function as a Cabinet of Ministers, albeit changes of portfolios having occurred from time to time, all in accordance with such Articles. It is important to note, in context, that once appointed the Cabinet of Ministers is responsible and answerable only to Parliament and not to the President.
A key Article under the 19th Amendment, and clearly relevant to the argument presented, is Article 46(3) which concerns the removal of Ministers from the Cabinet. Article 46(3) states as follows:
“A Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers and a Deputy Minister, shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he:
(a) is removed from office under the hand of the President on advice of the Prime Minister;
(b) resigns from office by a writing under his hand addressed to the President; or
(c) ceases to be a Member of Parliament.”
The logic of this argument seems to be that the President by his ability to remove every one of the members of the Cabinet by the hand of the President (presumably in writing), can by doing so disable the Cabinet of Ministers as a whole, from carrying out their functions under the Constitution. Ipso facto, read together with Article 46(2), the conclusion is that the Prime Minister himself cannot continue to function since he holds office only “throughout the period during which the Cabinet of Ministers continues to function…..”. This argument is extremely tenuous. First, at the time of writing, it is not evident that the President ever sent a written notice to Cabinet Members that they have been dismissed. Second, if he did so, there is no evidence that he secured the advice of Prime Minister Ranil Wickremesinghe (on whose advice the President sought to appoint the respective Ministers), in order to dismiss them. This is a required condition under Article 46(3)(a). Third, another anomaly in the 19th Amendment is that the President himself, under Article 42(3) is a member of the Cabinet of Ministers and in fact is the Head of the Cabinet. Hence, reliance on this line of reasoning can lead to absurd presumptions. To lend Article 46(2) to be completely effective, the President will also have had to serve written notice on himself to be removed from offices of the ministries in his charge! (See, also in context Paragraph 50 of the Special Provisions of the 19th Amendment). It is inconceivable that the President ever did so or would have contemplated meeting such a requirement with his actions. Fourth, none of the Ministers of the previous Cabinet had either resigned or ceased to be a Member of Parliament, in compliance with the requirements of Articles 46(3)(b) or 46(3)(c). Therefore, the previous Cabinet of Ministers can be deemed to have not been properly dismissed under the Constitution.
Another key argument in support of the President’s actions, which is being made, concerns the application of Article 48(1) of the Constitution. It reads as follows:
“On the Prime Minister ceasing to hold office by death, resignation or otherwise, exceptduring the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Members of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms Article 42, 43, 44 and 45.” (Emphasis added)
Justification under this section yet seems to be the strongest argument that can be made for the apparent constitutional appropriateness of the steps taken by the President. But this argument also runs squarely into the same rigid conditionality included in Article 46(2) that the Prime Minister can only be relieved from office if he either resigns or ceases to be a Member of Parliament. It could nevertheless be argued that the above emphasized phrase “or otherwise” contemplates other ways by which the Prime Minister can cease to hold office. There is no evidence, however, at least to this writer’s knowledge, that in the communication dismissing the Prime Minister, that Article 48(1) was cited as the justification. In any event, in addition to death and resignation of the Prime Minister which are specifically mentioned, one other way the Prime Minister can cease to hold office is by ceasing to become a Member of Parliament. Since it is not specifically mentioned in Article 48(1) that condition can be deemed to conform to the emphasized phrase “or otherwise”, as with other circumstances reviewed below. But none of these material conditions for cessation of the Prime Minister to hold office have occurred for the Cabinet of Ministers to have been dissolved and remain dissolved.
Article 48(1) corresponds to the original Article 49(1) of the Constitution, which in relevant part states:
“49(1) On the Prime Minister ceasing to hold office by removal, resignation or otherwise, except during the period intervening between the dissolution of Parliament….” (Emphasis added).
It is important to note the emphasized phrase “by removal”. This phrase was deliberately removed in Article 48(1) of the 19th Amendment in order to obviously align it with Article 46(2) of the 19th Amendment. This was precisely to avoid any presumption that the Prime Minister can be removed from office by the President at will, as originally envisaged in the Constitution.
However, it is also argued that the Sinhalese version of Article 48(1) never eliminated the phrase “by removal” therein. Consequently, it is argued that Article 48(1) properly anticipated a removal of the Prime Minister and, therefore, that the President’s actions were in conformity with the Constitution. However, the phrase cannot be read in isolation of the other applicable Articles; specifically, Article 46(2) which clearly specifies the ways in which the Prime Minister ceases to hold office. Therefore, in accordance with general principles of interpretation, absent any other provision which clearly specifies how the Prime Minister can be removed and by whom, Article 46(2) supersedes any other interpretation under any less specific Article in the Constitution.
Paragraph 48 of the 19th Amendment also adds a specific provision on inconsistency in relation to interpretation as follows:
“48 In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.
Those who have argued that this provision entitles the Sinhala text to prevail in the event of an inconsistency have not quite interpreted the text accurately. Prima facie, the Sinhala text will only prevail where there is an inconsistency with the Tamil text of the Act and NOT where there is an inconsistency with the English text. Yet, objectively speaking, an argument can be made that under the Constitution, Sinhalese and Tamil are the official languages (Articles 18 and 19 of the Constitution) and, therefore, English being the link language should yield to the primacy of the Sinhala version of the text. It is a fair point and can be argued. However, the English text, being more consistent with the specific changes made in the 19th Amendment, must prevail over any other text to the contrary because it deems to capture the specific intent encapsulated in Article 46(2) that is the same in the Sinhalese text of that Article. If not, Article 46(2) of the Constitution can be rendered without any practical use.
One other plausible way, constitutionally, where the Cabinet of Ministers can be dissolved by virtue of which the Prime Minister ceases to hold office. This is Article 48(2) of the 19th Amendment. Article 48(2) in relevant part reads as follows;
“If Parliament rejects the Statement of Government Policy or the Appropriations Bill or passes a vote of no confidence in the Government, the Cabinet of Ministers shall stand dissolved………..”
Once again, none of the aforementioned events had occurred for the President to justify the dismissal of the Prime Minister under the 19th Amendment of the Constitution. While there was recently a vote of no confidence in the Prime Minister, that vote in Parliament failed to muster a majority and it was not a vote of “no confidence” in the Government.
The only other method of indirectly dismissing the Prime Minister would have been through the dissolution of Parliament. But the ordinary dissolution of Parliament has been curtailed under Article 70(1) of the Constitution as amended under the 19th Amendment. The President cannot dissolve Parliament for a period of four years and six months from the date appointed for the Parliament’s first meeting. The earliest that can happen in this instance is late 2019. But, the President citing his enabling power under Articles 33(2)(c), 62(2), and 70 dissolved Parliament.
Article 62(2) of the Constitution also anticipates circumstances where the Parliament can be dissolved earlier as per the phrase “unless Parliament is sooner dissolved, every Parliament shall continue for 5 years….” Objectively speaking these provisions requires further analysis.
It is true that Article 33(2)(c) does empower the President to “to summon, prorogue and dissolve Parliament,”. It is, however, an empowering Article and does not mean that such power can be exercised without regard to the rest of the limiting Articles in the Constitution, such as Article 70(1), or Article 62(2). Article 62(2) sets the upper time limit, or “ceiling” for Parliament to be in session for no longer than five years. Article 70(1) sets the lower time limit, or the “floor”, to four years and six months.
Furthermore, it is manifestly clear that Article 70(1) intended to qualify what maybe assumed to be the President’s otherwise entrenched power to dissolve parliament under Article 33(2)(c). Article 70(1), in fact, recognizes this power of the President who “may by proclamation, summon, prorogue and dissolve Parliament”, which is the preface to the proviso which follows, that the President “shall not dissolve Parliament” until the expiration of four years and six months. The use of the phrase “shall not” is obligatory or mandatory.
In sum, there cannot be an ordinary dissolution of Parliament prior to the time-limits set in Article 70(1) or after the expiration of the time limit set-forth in Article 62(2). The only exceptions are those circumstances set forth for a prior dissolution of Parliament discussed earlier, under Article 48(2). If reliance is placed only on the empowering Article 33(2)(c), all of the aforementioned Articles are rendered totally useless and ineffective.
Given, the precarious circumstances, and as anticipated, 14 separate fundamental rights petitions were filed before the Supreme Court under Article 125(1) of the Constitution for its determination of the constitutionality of the decisions taken by the President. The Supreme Court has the exclusive jurisdiction to “hear and determine any question relating to the interpretation of the Constitution…” A three judge bench of the Supreme Court, however, did not decide on the constitutionality or otherwise of the President’s decisions. The Court instead stayed the enforcement of actions contemplated in the specific Gazette Notification until it had the opportunity to hear all of the petitions. It would then make its final decision on December 7.
In the interim, the dissolution order can have no effect and Parliament would, therefore, resume its present term. The chaos and confusion which has followed is the outcome of the still unresolved constitutional issues.
Consequences
The series of actions taken by the President without due regard for the procedures set forth in the 19th Amendment of the Constitution, has created serious political gridlock. It has further undermined the integrity of the Constitution, no matter its inherent flaws and serious errors in consistency, as earlier observed.
For the foregoing reasons, with the appointment of Mr. Rajapaksa as Prime Minister by the President, the dismissal of Mr. Wickremesinghe as Prime Minister and the dissolution of Parliament, the potential for a finding of breaches of fundamental provisions of the Constitution is possible. These possible breaches can have severe consequences. First, such action and related actions can have serious consequences for the President, particularly in light of his constitutional duty “to ensure that the Constitution is respected and upheld.” (Section 33(a) of the 19th Amendment). Second, such action has completely undermined the integrity of the Constitution. Third, exercising of such unchecked executive power has rendered fundamental democratic principles in the form of separation of powers to be under serious jeopardy. The catastrophic consequences are all too evident to observe.
By not seeking to find ways to legally dissolve the Cabinet of Ministers through the only methods iterated in Section 48(2) of the 19th Amendment; having no constitutional right to dismiss the Prime Minister in the manner done; and by dissolving Parliament, the President finds himself in a precarious situation. The interim decision of the Supreme Court merely exacerbated an already volatile situation.
The nation is in a perilous situation confronting a constitutional crisis; an impasse from which it will be extremely difficult to extricate itself. It can only be hoped a well-considered Supreme Court decision on December, the 7th, might provide an interpretation which can finally reinstate a status quo of stability.
(Prof. Srilal Perera is Adjunct Professor of Law at the Washington College of Law of the American University and has previously opined on constitutional issues in Sri Lanka)