A plea for sanity in a time of uncertainty

Monday, 19 February 2018 00:00 -     - {{hitsCtrl.values.hits}}

By Prof. Jayadeva Uyangoda

www.groundviews.org: The on-going political crisis following the local government elections of February 10 raises an issue about the constitutional and political propriety of presidential action. It revolves around the reported activities of President Maithripala Sirisena aimed at finding an immediate replacement for Ranil Wickremesinghe as the Prime Minister. Let us consider the constitutional and political aspects of the issue separately.

First a brief account of the circumstances in which the issue has surfaced.

The context of President Sirisena’s apparent determination to remove Wickremesinghe from the post of Prime Minister has political as well as personal dimensions. The extreme deterioration of political and personal relations between the two seems to have been precipitated by the findings of the Presidential Commission of Inquiry into the Central Bank bond scam. Although the Commission report did not implicate Wickremesinghe in the fraud, there has been perception in the country that he was morally responsible for the fraud and also for attempts at its cover up. President Sirisena used this issue as the key theme in his local government election campaign, promising the electorate that he would take some direct and drastic action to punish the corrupt. Although there are many individual politicians in the country tainted as being corrupt, President’s ire was primarily directed against Wickremesinghe and his UNP. It also appears that President Sirisena has decided to strike back, exercising his presidential powers at the first opportunity he got, after three years of being forced to function as a junior partner in the government and under the shadow of his own Prime Minister.

Initial reports indicated that President Sirisena went into action by searching for a new Prime Minister to replace Wickremesinghe immediately after the outcome of the local government elections became known. He had first approached Anura Kumara Dissanayake, the JVP leader, and then Karu Jayasuriya, the Speaker of Parliament, who himself is the UNP’s deputy leader. When those attempts failed, Sirisena seems to have successfully persuaded Minister Nimal Siripala de Silva to find adequate Parliamentary support to be elected or appointed as the new Prime Minister. De Silva is a member of the SLFP whose leader is President Sirisena. De Silva has reportedly been talking to Joint Opposition as well as individual UNP MPs.

This quite naturally created a great deal of political confusion and uncertainty in the country. A President of the same ruling coalition trying to sack his Prime Minister with the support of his bitter political opponents – the Joint Opposition, in this instance — is no ordinary political turn around. It is indeed unprecedented. That is why it was President’s reaction to the election outcome, rather than the election outcome itself, that has caused the current state of political turmoil in the country. It even overshadowed Mr. Mahinda Rajapaksa’s triumphalist reaction to the election outcome. Mr. Rajapaksa, along with his boisterous lieutenants, has been unusually subdued in his post-election political maneuvering.

Is President Sirisena’s active commitment to changing the Prime Minister after the defeat at the local government elections in accordance with the constitutional powers and responsibilities of the President under the 19th Amendment to the 1978 Constitution? Doesn’t it transgress the norms of constitutional propriety expected from the head of state at a time when the political balance of power in the country has acquired some lack of clarity, but not yet a crisis?

In order to be clear about the constitutional propriety, or the lack of it, of President Sirisena’s reported activism to appoint a new Prime Minister, let us look at the constitutional provisions regarding the presidential powers relating the office of the Prime Minister and circumstances under which a new Prime Minister is appointed by the President.

According to Article 41 (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.” For the President to act under this clause, there should be a vacancy of the post of Prime Minister. A vacancy in the office of the Prime Minister occurs only under three circumstances (a) when the PM ceases to be an MP, (b) s/he resigns, and (c) when the government resigns. The resignation of the government, and the cabinet including the Prime Minister, can happen either when Parliament rejects the Statement of Government Policy or the Appropriation Bill, or when a vote of no confidence on the government is passed in Parliament.

Thus, under the 19th Amendment, Sri Lanka’s President cannot remove a Prime Minister from office to create a vacancy in order for him to be able to exercise the power given under Article 41 (4).

Can the President under the 19th Amendment who does not like for personal and/or political reasons actively initiate a course of action that would lead to the appointment of a new Prime Minister while the duly appointed Prime Minister is still holding office? The 19th Amendment is silent about a question like this, because framers of the 19th Amendment – President Sirisena being one of them- may not have anticipated the kind of extraordinary situation developed soon after the local government election results were out. It is also more than a coincidence that President Sirisena himself is instrumental in creating this extraordinary situation.

Was President trying to re-interpret the provisions on the Prime Minister in the 19th Amendment in accordance with the 18th Amendment? Of course, the 18th Amendment, and the 1978 Constitution in its original form, allowed the President to remove the Prime Minister at his discretion. But, the 19th Amendment has removed that discretionary power of the President.  This is an important shift in the balance of relationship between the offices of the President and the Prime Minister based on a cardinal principle that guided the 19th Amendment that is, recasting the balance of power between the executive and Parliament in favour of Parliament. Under the 19th Amendment, the Prime Minister is not a creation, nor an agent, of the President, although he appoints him/her under Article 41 (4). Rather, the Prime Minister, and ministers of the Cabinet – the political executive – are representatives of the legislature.

It is in the light of this cardinal constitutional norm, which has rightly or wrongly guided the 19th amendment, that the issue of constitutional propriety of Presidential action after February 11 with regard to the possible removal of the Prime Minister needs to be raised.

One can still argue that there was nothing unconstitutional in President Sirisena’s search for a replacement Prime Minister since he had formed the opinion that the incumbent individual was not fit to be the Prime Minister. Yet, the question that still poses itself as a concern is the following: does such action by the President pass the test of constitutional and political propriety? Didn’t the President’s two parties too, lose the local government election badly, worse than the Prime Minister’s party did? I will leave the constitutional question for the jurists to debate. As a non-lawyer, my view is that it is a situation that could have been delayed until the issue of the Prime Minister was settled in parliament without his direct intervention to preempt a specific course of action.There are some lessons to be learnt from this experience. It is better for the President to exercise a little more caution and restraint in advancing his own political and policy agendas so that his actions will be in accordance with the letter and spirit of the constitution. Perceived violation of them by others should not be an excuse for him. Since the 19th Amendment’s particular hybridity may have left room for contingent grey areas in constitutional law and practice, similar to the one at hand at present, it is very crucial for all concerned to think twice before setting constitutional precedents. It is also prudent for the President at the moment to be clear in separating his political functions as the leader of two political parties and constitutional responsibilities as the head of state.

Sri Lankan citizens today, who have been failed by many other leaders, deserve to have least one leading state functionary to abide by political ethics, law, and the constitution.