‘Sacking RW, appointing MR’ – Is it unconstitutional?

A reply to Professor Ratnapala

By Rusiripala Tennakoon

This article appeared very recently in a popular website receiving much public attention with several commenting on it for and against. The subject matter however remains to be sub-judice due to an interim order issued by the SC. 

Nevertheless, an eminent legal personality being the Emeritus Professor of Law of The University of Queensland has chosen to publicly respond to a query reportedly made by Upul Jayasuuriya, a UNP lawyer and a former Bar Association President, seeking his authoritative opinion publicly despite the sub-judice issue. 

I consider it appropriate to join in the discussion to express a point of view not forgetting Prof. Suri Ratnapala’s long close associations with Ranil Wickremesinghe, a member of his panel of intellectuals and an Advisor of the Steering Committee on the new Constitution. 

Prof. Ratnapala has opined that the dissolution of the Parliament is invalid according to the Constitution. He, I believe, was compelled to express a public opinion because of three specific questions posed to him by Upul Jayasuriya. The country is now awaiting a ruling on this matter from the supreme body of the Judiciary. Hence I do not wish to comment about Prof. Ratnapala’s opinion on that count.

Regarding the removal of the PM from office, he states that there is no power under the Westminster Convention or the provisions of the Sri Lanka Constitution to do so.

The reference to the Westminster Conventions by the writer is not relevant in the current context because of the unwritten character of the system there and in the working of the Executive branch of Government and its relationship with the Legislature; the Constitution is regulated to a large extent by rules which do not belong to the normal legal categories. 

These rules are called constitutional conventions. They are rules of political conduct or binding usages, most of which are capable of being varied or of simply disappearing as political conditions and ideas change. Conventions cannot be regarded as more important than a written constitution. E.g. Under strict Law (Royal prerogative) the Queen can dismiss her ministers at pleasure. But by convention this legal power is exercisable only in very extraordinary circumstances! Our situation is different because we have a written constitution clearly setting out the applicable provisions.

When we examine this under the Sri Lanka Constitution, it is clear that the Sinhala version has to be looked at due to a difference that exists between the Sinhala and the English versions of Article 48 (1) referred to by him as relevant to the issue. 

Under this Article (Sinhala) the PM ceases to hold office by;

1. Removal from office

2. Resignation

3. Or otherwise

When the PM ceases to hold office due to any of these reasons the cabinet of ministers shall, unless the President has dissolved Parliament under Article 70, stand dissolved and the President shall appoint a PM, ministers of the cabinet of ministers and deputies, etc.

Removal from office

Chapter viii {The Executive}, of the earlier Constitution has been repealed and replaced by a new chapter viii under the 19th Amendment. When the 19th Amendment was referred to the SC in 2015, for a determination whether proposed amendments do not violate the powers of the Constitutional provisions, the apex Court determined and conveyed in no uncertain terms that the powers vested in the President are the inalienable sovereignty of the people and several Sections of the Bill require the approval of the people at a referendum according to the Constitution, if required to amend. The SC accordingly conveyed to the speaker of the Parliament stating inter-alia as follows:

Clause 11 deals with “The Executive – The Cabinet of Ministers”. In the absence of any delegated authority from the President, if the Prime Minister seeks to exercise the powers referred to in the aforesaid Clause, then the Prime Minister would be exercising such powers which are reposed by the People to be exercised by the Executive, namely, the President and not the Prime Minister. In reality, Executive power would be exercised by the Prime Minister from below and does not in fact constitute a power coming from the above, from the President. In the words of Wanasundera, J. as stated in Re the Thirteenth Amendment to the Constitution at page 359, “If the Executive power of the People can be renounced in this manner, serious questions regarding the proper administration of the country could arise. At the bare minimum, legislation permitting such a renunciation must have the approval of the People at a Referendum.”

The SC did not expect any of the powers vested in the Executive to be removed or reduced without an approval at a referendum before the 19th Amendment.

In Chapter viii of the Constitution before 19th Amendment, the tenure of office of the Prime Minister came under Article 47 where it is stated that the PM shall continue to hold office throughout the period which the Cabinet of Ministers continues to function unless he;

(a) is removed by a writing under the hand of the President;

(b) resigns his office;

(c) ceases to be a Member of Parliament.

This article has been replaced in the 19th Amendment by Article 46 (2) where it is stated that PM shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function unless he,

(a) Resigns his office by a writing under his hand

(b) Ceases to be a Member of Parliament

The provision to remove the PM from office by the President has been removed! 

But it is included in the Article 48 (1) dealing with the dissolution of the Cabinet of Ministers in the same Chapter viii, The Executive. This clearly shows that the authors of the constitutional amendment had allowed the President’s power to remove the PM to remain in the Constitution in order to satisfy the requirement to retain the powers which are reposed by the people to be exercised by the Executive. This however was a requirement to pass the amendment without a referendum. 

Hence the 19th Amendment retained that power in Article 48(1).

Therefore one cannot accept Prof. Ratnapala’s argument that “whatever is stated (even) in the Sinhala version the President has no power to remove the PM”. 

PM ceases to hold office for reasons stated as ‘otherwise’

Prof. Ratnapala has failed to consider another valid point as a reason for the Cabinet of Ministers to stand dissolved;

According to {19th Amendment} Article 46(1): “Ministers of the Cabinet of Ministers shall not exceed 30”.

But under Article 46(4) “ when the political party which obtains highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers shall be determined by Parliament”.

Now we are aware that UNFGG which contested the general election formed a NG with the UPFA under an agreement which was valid for two years from August 2015. They got the approval for a jumbo Cabinet. Immediately before the sacking of the PM, the UPFA left the NG, thereby making the jumbo Cabinet that existed till then cease to exist unconstitutionally. Hence the Cabinet of Ministers stood automatically dissolved as a result of which the office of the PM ceased to exist. 

At this point the President under powers vested in him under Article 42(4) appointed the MP who in the President’s opinion, is most likely to command the confidence of Parliament.

The breaking down of the so-called National Government which was continued beyond the agreed two-year period due to the sudden withdrawal of the counterpart, the UPFA, was the biggest challenge for its mainstay amidst the constitutional requirements. Collapse of the jumbo Cabinet and the Office of the PM ceasing to exist thereafter followed automatically.

The SC has clearly established that the powers vested in the President cannot be removed without having recourse to the people with whom the ultimate sovereignty resides. Accordingly if there was any prerogative powers to be exercised by the President in the Constitution they will remain until amended followed by a referendum.Prof. Ratnapala is well aware that unlike in Australia (his current domicile) where the Constitution had to be born and enacted by the UK Parliament, which only had the power to enact it, we have a constitution rooted in the native soil not derived from any imperial predecessor. We have adopted ours by a Constituent Assembly in the name of the people.

Therefore the removal of the PM, appointment of a new PM and the prorogation of Parliament are actions all within the constitutional powers.

We wish to reiterate and remind Professor Ratnapala that the people of Sri Lanka want the Executive to exercise its powers in keeping with the aspirations of the people and not according to the whims and fancies of unseen external forces machinating to bulldoze our sovereignty.