Is another constitutional crisis looming in the distance?

A news item published in the Sunday Times of 4 August, titled ‘President unlikely to allow jumbo cabinet,’ is indicative of a constitutional controversy. 

Referring to a resolution now before the Parliament for the formation of a National Government and thereby to increase the number of Cabinet Ministers to 48 and the number of Deputy Ministers to 45, Shiral Laktilleke as the Senior Advisor to the President has stated: “In terms of the Constitution, it is the President who has to decide on whether he is satisfied that there is a case for a National Government.”

The manner in which a National Government can be formed and the determination of the number of Cabinet and Deputy Ministers in such a National Government is given in paragraphs 46 (4) of the 19th Amendment while paragraph 46 (5) goes to describe what a National Government means. All these are new provisions that have been brought into the constitution under the 19th Amendment. Chapter viii of the old Constitution dealing with The Executive and the Cabinet of Ministers has been repealed and substituted by a new chapter viii to deal with the Executive and the Cabinet of Ministers as a replacement.

Under the provisions in the amended Constitution, if and when a National Government is formed, “the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by the Parliament”. Under the two sub sections 46 (4) and (5) dealing with the National Government there is no provision for a decision by or the fulfilment of a satisfaction of the President as pointed out by this Senior Adviser. 

So the question that comes into our mind is, if the Parliament decides to form a National Government, can the President intervene in the matter in terms of the Constitution? If there is going to be any overruling by the President as stated by the Senior Advisor, will that not precipitate another crisis like in the case of the dissolution of the Parliament by the President in October 2018?

Leader of the House Minister Lakshman Kiriella has already tabled a resolution before the Parliament to the effect that, “Whereas the UNP which obtained the highest number of seats in Parliament has formed a National Government, Parliament determines in terms of Article 46 (4) of the Constitution of the Democratic Socialist Republic of Sri Lanka that the number in the Cabinet of Ministers shall not exceed 48 and the number of Deputy Ministers shall not exceed 45.”

While the formation of a National Government and increasing the number of Cabinet and non-Cabinet portfolios accordingly thereafter are matters that require a constitutional focus, there appears to be no provisions under the Articles referred to for the President to veto such moves in terms of the Constitution, as pointed out by Senior Adviser Lakthilleke. Therefore, if the Parliament adopts the resolution and the President acts contrary to the decision, it will invariably lead to a crisis situation. Nevertheless, there are other ways to confront. Any public-spirited citizen could seek legal intervention due to many other possible avenues available under the law.

The first and the foremost consideration would be challenge whether the resolution to form a National Government conforms to the provisions in Article 46 (5). The Article defines what a National Government is. It states, “National Government means a Government 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.”

The resolution before the Parliament refers to the UNP as the party which obtained the highest number of seats in Parliament. This is factually incorrect. The UNP did not contest the last Parliamentary election as a party. It was a group of parties called UNFGG (United National Front for Good Governance) which comprised several different constituent parties. UNFGG secured 106 seats and formed a National Government with the SLFP under a two-year agreement entered into with the Central Committee of the SLFP on 20 August 2015. This agreement is no more and the current Government is of the UNFGG which is not a National Government. According to Article 46 (1) (a), the number of Ministers of the Cabinet of such a government cannot exceed 30.

But due to the existing precarious political uncertainties, the UNFGG Government headed by PM Wickremesinghe has to consolidate the position by any means, in order to assure the survival amidst pressure of various demands coming from the constituent minority parties. Leaders of the UNFGG committed to the axiom of “end justifies the means” are not worried about the ethics and the governing rules in order to achieve their goal. 

A careful analysis of the results of the last Parliamentary elections will show that it is the SLFP which obtained the highest number of seats as a single party having contested as a group under the UPFA. The UNP which contested under the UNFGG obtained a lesser number than the SLFP as a single party. This can be verified by any one. Hence the contents of the resolution tabled by Minister Kiriella is incorrect , factually wrong and cannot conform to the stipulated eligibility requirements for the formation of a National Government in terms of the Constitution.

However, there are other constitutional provisions that can be applied under diverse circumstances if pressing needs arise to contain any spurious attempts to expand the cabinet to a jumbo size. According to the 19th Amendment, under Article 43 (1) it is the President who has the prerogative power to determine the number of Ministers, and the Ministries and assignment of subjects and functions to such Ministers. There is no mandatory requirement for the President to consult the Prime Minister on this matter. 

Furthermore under section (3) of the same Article, 43, the President has powers to at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. If there is a need to defeat any unscrupulous attempt to circumvent laws under the Constitution, there are avenues and some powers still left that may be utilised by the Executive.