To be or not to be

• The Wijeyadasa Rajapakshe, PC saga – some questions of law following the 19th Amendment

Resignations, removals and collective responsibility

In the wake of “a resignation” from the office of the former Minister of Foreign Affairs, we saw what was termed “a removal” from office of another, the Minister of Justice and Buddha Sasana; over allegations reported as being the failure to abide by the Collective Responsibility of the Cabinet (over the Hambantota Port Agreement) and the failure to speed-up prosecutions of alleged mass-scale corruption and malpractices of the previous regime. 

Emphasising that the idea of this dialogue is not to engage in any political discourse of what happened (or did not happen), having been involved with the formulation of the 19th Amendment to the Constitution in the immediate aftermath of the 8 January “silent revolution” I thought it was pertinent to look at several questions of law that arise in this process; perhaps as a precursor to an intellectual dialogue of the Sri Lankan polity as to how we are meant to be governed as opposed to how in fact we are supposedly “governed” (or misgoverned)!

I suppose the best explanation of “collective responsibility” from the science of politics lies in the often quoted words (at times attributed to Churchill) that “whether we swim or drown, we must do it together”; which has been given legal recognition at Article 43 of the Constitution, requiring the Cabinet of Ministers charged with the direction and control of Government to be collectively responsible to Parliament, therefore by necessary implication, to us the People. The common concept is that should any member not wish to be so bound, he must then resign from such collective responsibility of the Cabinet; which admittedly Wijeyadasa Rajapakshe PC, MP did not do prior to his removal this afternoon.

Co-relation between Cabinet’s Duty and Directive Principles of State – Articles 43 & 27

The Cabinet is bound to be “guided” by the ‘Directive Principles of State Policy’ set out in Article 27 when exercising its charge of the “direction and control of government” given under Article 43, the idea being that the President (head of the Cabinet), the Prime Minister and other ministers are also collectively bound by the Rule of Law specified in the Constitution in all their undertakings; they have not been given an open warrant or the commonly quoted freedom of a wild ass to govern as they please, as for instance, when dealing with public assets or the judicial process. Therefore whilst Wijeyadasa Rajapakshe PC, MP may have been charged (and may very well be guilty) with the breach of collective responsibility, one needs to also consider the following questions:

(1) Was the removal of Wijeyadasa Rajapakshe PC, MP legal/sustainable in law?

(2) Are the allegations against Wijeyadasa Rajapakshe PC, MP matters that a Cabinet of Ministers can insist upon in law?

(3) Do the provisions of the Constitution (following the 19th Amendment) permit Wijeyadasa Rajapakshe PC, MP to challenge this removal?

These ‘Directive Principles of State Policy’ at Article 27(2), amongst other things, directs a Cabinet of Ministers to ensure:

•  full realisation of fundamental rights and freedoms (a)
•  justice to all people (b)
•  equitable distribution of our resources to best subserve the common good (e)
•  means of production, etc. are not concentrated on a privileged few but dispersed to all people (f)

Therefore it may be pertinent to ponder the question whether the fault or faults found in Wijeyadasa Rajapakshe PC, MP to remove him from Cabinet office (as appears from what is reported), such as the speaking out against the Hambantota port agreement or failure to speed-up prosecutions of earmarked cases can be justified as lawful demands of a Cabinet; the fact that he breached collective responsibility is an entirely separate issue which he may veryz well be guilty of.

The ‘Pleasure Principle’ – Appointment and removal 

of a minister

Particularly in appointments in the public sector we speak someone serving at “the pleasure of the employer”, meaning that you hold office in so far as you satisfy the requirements of your appointing authority; which does not mean however, in today’s context and the wealth of interpreted law that you may be removed unlawfully and/or in violation of your rights. 

The amended Article 33(1)(a) requires a President of this Republic to ”ensure that the Constitution is respected and upheld”, which therefore vests a right on any person whose constitutional rights have been infringed to have them vindicated as a necessary corollary thereof. In this light we also note that the replaced Article 35(1) removes the previous absolute immunity enjoyed by a President from legal suit, permitting any person aggrieved by an act of the President to challenge same under Article 126 before the Supreme Court.

A plain reading of the amended Article 43(1) and (3) following the 19th amendment provides for the complete discretion (subject to “consultation with the PM, if necessary”) to appoint a Minister of the Cabinet and allocate functions and at 46(3)(a) to remove someone so appointed on the advice of the Prime Minister. Thus whilst the power clearly lies with President Sirisena, the legal question is was that power exercised within the parameters of the Rule of Law; this of course is a question of fact which, if referred for adjudication, will have to be determined by evaluating the evidence of the allegations, the charges, the inquiry into it and the ultimate removal.

Even if “Collective Responsibility” was breached – are the 

allegations “legal”?

Thus if we were to break down the allegations (as reported) leading to the removal of Wijeyadasa Rajapakshe PC, MP from office –

(a) if the question is that Wijeyadasa Rajapakshe PC, MP spoke out against the collective decision of the Cabinet on the Hambantota port agreement, then:

i. whilst he may very well be guilty of breaching collective responsibility, was the Cabinet also not guilty of breaching the law in entering that agreement?

ii. If so should the Minister have been removed based on an illegality?

(b) if the question is that Wijeyadasa Rajapakshe PC, MP did not use his ministerial portfolio of Justice to speed up certain earmarked prosecutions:

i. whilst he may very well be answerable as to why he did not come up with a special mechanism sustainable in law to prosecute certain identified categories or classes of cases, can he be asked to interfere or intervene in a judicial process?

ii. If so was such a requirement, for instance to prosecute certain identified persons or cases giving priority over others a legal request?

These thoughts were gathered in somewhat of a rush, seeing the events that unfolded this afternoon, therefore my sincere apologies for the brevity and any corresponding absence of detailed explanations; which I am sure will follow during the course of the proceeding weeks. As that famous Chinese saying goes (no pun intended), “May we live in interesting times”!

Power to the people!