Columns

In the event of Gotabaya being cleared of any disability to contest the forthcoming polls and does indeed contests it and wins it, the impression widely shared by many in the Pohottuwa gang that overnight brother Mahinda will be sworn in as Prime Minister, is – sorry to say and dash their high held hopes – grossly mistaken and their optimism widely misplaced.

The election of a new candidate does not make the Articles in the Constitution quiver in the slightest. The new President may have a new mandate but it’s only a mandate to act as president in accordance with the terms of the powers vested in his office by the existing constitution and not a mandate to alter even a comma of its provisions.

On January 9, 2015, upon Sirisena being sworn in as President he could summarily dismiss the then existing Prime Minister D.M. Jayaratne only because the then existing constitutional provisions empowered him to do so. Under the Sirisena enacted 19th Amendment to appoint a member of the House  who, in his opinion, commands the majority of the House as Prime Minister comes in to play not when a new president is elected but only when a general election is held and a new Parliamentary session starts.

This widely held misconception was reinforced in the public conscious last Sunday when a major mainstream sinhale Sunday newspaper published as its lead story based on the light it saw in its crystal ball and headlined the news: ‘Gota President, Mahinda Prime Minister, Maithri Speaker.’

That same Sunday, SUNDAY PUNCH 2 had an opposing view after perusing the Constitution with the 19 Amendment incorporated. It commented: “Even if Sajith Premadasa were to become the new Arthur at UNP’s Camelot and the new president, Ranil Wickremesinghe will still safely be ensconced at Temple Trees as the nation’s Prime Minister. The 19th Amendment guarantees him that. And, surprise, surprise, even if Pohottuwa’s candidate Gotabaya Rajapaksa was held qualified to contest and were he to win the presidency, he would also have to tolerate Ranil Wickremesinghe as his Prime Minister and back seat driver; for not a single Minister can be appointed or sacked by him without the prime minister’s consent.”

Two days later, Sirisena at the SLFP Convention on Tuesday gave echo to these sentiments.

The SLFP was founded on September 2, 1951 but since of late its anniversary has been shifted to September 3rd to coincide with the day Maithripala Sirisena was born. Nothing wrong with that, of course, apart from a slight hint of vanity to pretend to the nation that by some incredible co incidence, the SLFP and he were born on the same day – that the part was born with him and he born with the party and the two, like Siamese twins, are inseparable -  though the party is one day older than him. And this week on Tuesday the 3rd as the SLFP commemorated its 68the year and Maithripala celebrated his 68th birthday, party supporters expected the party’s presidential candidate to be named as they had been led to believe these last few weeks by the many SLFP mouthspeaks.

Instead what birthday boy Maithri announced took them aback in astonishment. For the first time, this once major national political force that had dominated the political scene for 36 years plus another four with an SLFP leader at the helm of the nation’s 71 years of independence, had instead, under Sirisena’s weak leadership, decided to give up the ghost of having any presidential ambitions and would instead concentrate on winning the general elections next August with Sirisena returning triumphant as its  Prime Minister.

As he himself declared: “I urge that focus must be drawn on choosing a Prime Minister and not a President since the 19th Amendment has curbed the powers of the President.”

Well, he should know better than most the truth of that, now shouldn’t he? After all it was he who claimed to be its architect and, to his credit, got it enacted, repealing the draconian 18th Amendment in the process, which enabled a Lankan President to act as a de facto dictator.

It was only during the infamous 51 days starting from October 26 last year when he summarily sacked Ranil Wickremesinghe as Prime Minister and appointed Mahinda Rajapaksa in his stead and went on, a week later, to dissolve Parliament well in advance of the date the 19th Amendment permitted him to do so and was found guilty of violating the Constitution by a seven-judge Supreme Court bench which held it illegal that he realised that his own creation, like Frankenstein’s Monster, had turned against him and barred him from acting in the same despotic manner his predecessor had acted.

It was only after he realised that whilst the 19th Amendment he had so proudly fathered had given the people the freedom to fly at the cost of his own wings being clipped and grounded as a result he began to denounce the 19th Amendment on 23rd June this year as the ‘Curse of Lanka’.

“The 19th Amendment,” he declared, “is a curse and whoever comes to power at the next presidential poll should abolish it, if he loves the country.”

As the SUNDAY PUNCH of June 30 commented: “It was the peacock feather in his presidential cap, not even his worst detractors could deny him credit. The nation stood rooted in gratitude at the spectacle of a man publicly castrating himself of his executive powers for the nation’s greater good. Four and a half years into his presidency, the candle’s flame still burns, the nation pours its oil to keep the wick alight but the man who claimed the laurels for its light now seeks to snuff the very candle he waxed into being. And, lamenting over his self enacted disability to run a one man show as his predecessor Mahinda did, condemns it as the ‘curse of Lanka’.

“In November 2016, in an interview with the Indian newspaper, the Hindu, he had this to say of the 19th Amendment. He said: “We established independent commissions. It was essential for the country to ensure protection of human rights, democratic rights, fundamental rights and the freedom of the people. I have ensured that people get these rights. I have given the maximum possible media freedom. There are no killings or abductions. When the people made me the President, they did not ask for food, water or clothes. They wanted a society where they could live freely and happily. I have given that to the people.”

His sidekick serial pole vaulter Dayasiri Jayasekera, now SLFP Secretary, had the temerity to add that, “President Sirisena hadn’t been really aware of the implications of the 19th Amendment.” Not really aware? Does he mean that Sirisena was ignorant, clueless as to the import of the 19 Amendment he signed into law?

Perhaps, so. Whilst he obviously knew how much benefit the masses would gain, perhaps. He was ignorant of the self-castration he had done to his own powers as president until it was put to the test after October 26 last year. Then he demonstrated a trait many of his predecessors had displayed earlier. If it was bad for the president, then it must necessarily be bad for the people.

First let’s consider what the president can do under the present constitution with the 19th Amendment incorporated therein. What is his job description and the ambit of his powers and whether the once all powerful presidential office has been reduced to a ceremonial, sinecure post. The following are some.

n By virtue of his office as President, he shall be the Head of the State, the Head of the Executive, the Cabinet and of the Government, and the Commander-in-Chief of the Armed Forces.

n He shall attend Parliament once every three months but only as a member, enjoying only the privileges and immunities enjoyed by a member apart from the right to vote. He can, however address and send messages to Parliament. He must ensure that the Constitution is respected and upheld and promote national reconciliation and integration and ensure and facilitate the proper functioning of the Constitutional Council.

n He shall make the Statement of Government Policy in Parliament at the commencement of each session of Parliament and will preside at ceremonial sittings of Parliament. He will have the power to summon, prorogue and dissolve Parliament. In the case of dissolving Parliament he can only do so four months prior to the shelf life of Parliament expiring and not a day before at his whim and fancy.

n Ah, yes, he shall have the power to receive and recognise, and to appoint and accredit Ambassadors and High Commissioners.

n He will have the right to appoint as President’s Counsel, attorneys-at-law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude.  But aghast at the way he had been thrusting President Counsel titles to mediocre lawyers of little note like guests shower confetti on the bride and groom at weddings, the Bar Association has in a letter to him dated July 5 this year suggested that the President seek the advice of the Chief Justice, the Attorney General and the BASL when appointing PCs. It has also suggested that such appointments be made following a strict criteria and a selection process. Thus this unfettered right may soon become subject to a special legal body.

n He shall be the custodian of the Public Seal of the Republic, and keep it to make and execute under the Public Seal, the acts of appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the Chief Justice and other judges of the Supreme Court, the President of the Court of Appeal and other judges of the Court of Appeal, and such grants and dispositions of lands and other immovable property vested in the Republic as the President is by law required or empowered to do.

n He 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, including the law for the time being relating to public security.

n He may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka grant a pardon, either free or subject to lawful conditions or grant any respite.

n But in the case where any offender shall have been condemned to suffer death by the sentence of any court, this power is not absolute. He shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President. It shall then be upto him to either accept it  or reject it.

n He will also have the power to appoint Governors to the provinces and secretaries to the ministries.

n He shall also enjoy immunity. While any person holds office as President, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity.

n He will also have the absolute right to adorn citizens with the titles of Desha Abhimanya, Deshamanya, Deshabandu and garland the recipients with their own flowers of achievement.

n Is there anything else? Oh, yes. Almost forgot. The President shall have the right to declare war – even against America or Russia or India or China, singularly or collectively; and shall also have the right to make the peace if things go awry.

Well, that then, in the main, is the President’s constitutional powers, duties, responsibilities and functions. But what does the flipside hold? What he cannot do or can do only with the consent of the Prime Minister? Here are some.

Immediately after a general election is held and before the beginning of a new parliamentary session, under Article 44(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.’

This is an absolute discretionary power and cannot be challenged in court. But it can be tested in Parliament. For if the President were to choose a member who was not from the majority party or from a party which along with a coalition commanded the majority of seats, the consequences can be fatal to any bill presented before the House as it will be defeated.

When President Sirisena appointed Wicremesinghe as Prime Minister, the UNP had only 44 seats in the House. But since the grand plan was to have a Sirisena-Ranil coalition, with the SLFP becoming partners in a ‘national government’, the votes to get legislation passed by a simple majority were present and thus did not cause an impasse.

But after exercising the first act of appointing the Prime Minister at his total discretion, and determining the number of ministers of the cabinet and the subjects and assignments to such ministers with or without consulting the premier, the Prime Ministerial shadow falls on the president and dogs his every step and action thereafter.

Now comes the crunch. It shall only be on the advice of the Prime Minister that the President shall appoint the ministers to be in charge of the ministries and ministers who shall not be members of the cabinet so determined. Deputy Ministers will also be appointed only after consulting the Prime Minister.

However, the president on his own, if he thinks consulting the prime minister is not necessary, may at any time change the assignments of subjects and functions and the composition of the cabinet. He may also at anytime change any assignment.

Once 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 unless

n Resigns from office or

n Ceases to be a member of Parliament.

n Or, on the advice of the Prime Minister, he is sacked by the President. Thus all the appointments and dismissals of all cabinet, non cabinet and deputy ministers lie in the hands of the Prime Minister.

Furthermore, under Article 47, The Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall, notwithstanding such dissolution, continue to function and shall cease to function upon the conclusion of the General Election and accordingly, the Prime Minister and the Ministers of the Cabinet of Ministers, shall continue to function unless they cease to hold office as stated above.

On the death, removal from office or resignation, during the period intervening between the dissolution of Parliament and the conclusion of the General Election, of a Minister of the Cabinet of Ministers, the President may, on the advice of the Prime Minister, appoint any other Minister to be the Minister in charge of the Ministry.

Under Article 46 (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

n he resigns his office by a writing under his hand addressed to the President; or

n ceases to be a Member of Parliament.

Under the constitution the Prime Minister cannot be sacked as the above implicitly states.  But Article 48 makes reference to the Prime Minister ceasing to hold office by death resignation or otherwise. What does ‘otherwise’ mean?

Of course it would need judicial interpretation but doesn’t Article 48 (2) make provision for his removal? Consider it.

Article 46 (2) states the Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function. Article 48(2) states that if Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and thus, in that event, the Prime Minister will cease to hold office. And the President shall then be free to appoint a new Prime Minister.

In or around November a Quo Warranto writ petition was filed against former Prime Minister Mahinda Rajapaksa by Ranil Wickremesinghe and 121 members of Parliament.

In the meantime, following the Supreme Court verdict on the dissolution of Parliament, Mahinda Rajapaksa resigned as Prime Minister and the President was forced to reappoint Ranil Wickremesinghe as Prime Minister. With the status quo restored the petitioners withdrew the petition on March 12.  It was unfortunate that the Appeal Court was unable thus to give its determination on this matter.

But one thing is certain. If a new President other than Ranil is elected and he seeks to dismiss Wickremesinghe as Premier and appoints a new Prime Minister, the Courts will be petitioned for a determination as to its constitutional validity. And should the Court hold that it’s a violation of the constitution, what an inauspicious and embarrassing start it would be for the new President, with his first act as president held by the courts as a violation of the constitution.

Another bar on presidential power under the 19A is his right to appoint the chief justice, SC judges, Appeal Court judges and its president, the AG, the Parliamentary Secretary General, the Auditor General and the Ombudsman. The Constitutional Council nominates and gives consent to one candidate to be appointed to office from the one or more candidates proposed to the council by the President. Candidates are endorsed after debate and a secret ballot. The President has no power to appoint the Speaker. As per the Article 64 of the Constitution when Parliament first meets after a general election, it will elect three members to serve as the Speaker, Deputy Speaker and Chairman of Committees.

This Tuesday at the SLFP convention Sirisena declared: “I urge that focus must be drawn on choosing a Prime Minister and not a President since the 19th Amendment has curbed the powers of the President.“

But Mahinda Rajapaksa’s take on the matter was completely different. Referring to Sirisena’s comment on the 19th Amendment and how it curbed presidential powers, he said power hinged on one’s capability. That is correct. If as the Rajapaksas had done during their regime, the new president plays the player and not the ball and goes beyond the rule book, then the constitution would stand violated and law and order flouted with the Rajapaksa refrain resounding  that the ‘country needs discipline applying only to their foes and not to their cronies.

TWIN DELIGHT: Eranmatti Mangayamma Twin girls born to woman, 74 But in the midst of bliss, there is sorrow too Seventy four year old Erramatti Mangayamma, wife of E Raja Rao aged 80, from Andra Pradesh in India gave birth to twin girls on Thursday. The couple had been married for the last 57 years but had been unable to conceive a child, even though they had tried so many fertilisation treatments. She is possibly the oldest woman in the world to give birth. But Eranmatti never gave up. Last year, she came to know about a woman in her neighbourhood who had conceived at the age of 55 years becoming pregnant at the age of 55 years through intro vitro fertilisation (IVF). Doctors said, ‘she decided to try the method and approached us. We were surprised at her will power. We conducted all the medical tests and found that she was medically fit for conception through IVF.’ Dr Sanakayyala Umashankar, director of the hospital, who performed the caesarian operation, said, “The surgery went smoothly. Both mother and the infants are healthy and have no complications whatsoever.” But in the midst of good news, there is also the worry of how the twin girls will survive in time to come. Their parents are well past their prime and the added toil of bringing them up will take its toll on the aged couple. One more thing. Though she had passed her menopause 25 years ago, she had a strong desire to be a mother. But at her age she had no chance of producing eggs. “So, we tried with an egg obtained from another donor and fertilised it with the sperm of Raja Rao through IVF method. Luckily, she conceived in the first cycle itself and she was found to be pregnant this January,” her doctor said. Her prayers of giving birth may have been answered, How sad, her desire to be a mother was not. She ended up as a surrogate mother bearing the pangs of labour to give birth to another woman’s child whose sperm donor was her husband. Sometimes, it’s best not to go against fate.