Of Constitutions, Cabinets and Coups

Featured image by Raisa Wickrematunge 

This brief article seeks to build on what commentators have already contributed regarding the present constitutional crisis, and to suggest responses to several claims which – perhaps – have not been addressed comprehensively.

In the discourse surrounding the events since the evening of October 26, 2018, the purported appointment of Kurunegala District MP Mahinda Rajapakse as Prime Minister has taken centre-stage.

Appointment of Prime Minister

Article 42 (4) reads –

“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.”

Commentators have suggested that this provision relates only to the initial appointment of the Prime Minister; it is not a power that the President can exercise at his discretion, after having appointed a member of Parliament as Prime Minister (the broad scheme of the 19^th Amendment was to reduce the powers of the President and strengthen those of the Prime Minister and Parliament). Furthermore, it has been suggested that the expression “in the President’s opinion” is not left completely to the discretion of the President, but is based on the capacity of the said person to control a majority of votes in Parliament.

There is no provision in the Constitution which states that the President may dismiss the Prime Minister at his discretion. Some have argued that the Section 14(f) of the Interpretation Ordinance (which states – in a nutshell – that a provision granting power to appoint will include the power to dismiss, suspend or reinstate) would apply in interpreting Article 42 (4), thus conferring on the President the power to dismiss the Prime Minister. However, Dr. Jayampathy Wickramaratne, in a recent press conference, made clear the well-established principle that where there is a conflict between the provisions of the Constitution and any other law, the former must prevail. Again, a broad view of the 19^th Amendment makes it clear that the reason this power was not given to the President was to limit his power, and to increase his accountability to Parliament.

Accordingly, if the President cannot not dismiss the Prime Minister, he could only have appointed a new Prime Minister if the office of the Prime Minister had fallen vacant. Therefore, the question to be determined is whether this was the case.

Prime Minister ceasing to hold office

After the appointment of the Prime Minister, Article 46 (2) controls the duration of his office. It reads –

“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 he

(a) resigns his office by a writing under his hand addressed to the President; or

(b) ceases to be a Member of Parliament.” (emphasis mine)

Accordingly, the office of the Prime Minister falls vacant if –

• the Cabinet of Ministers ceases to function
• he resigns his office
• he ceases to be a member of Parliament

It is clear that neither of (b) or (c) have occurred over the course of the last two days. Therefore, the question becomes whether the Cabinet of Ministers can be said to have ‘ceased to function.’

Dissolution of Cabinet of Ministers

In this regard, Article 48 reads:

“48. (1) On the Prime Minister ceasing to hold office by death, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45:

…[proviso]…

(2) 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 the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45.” (emphasis mine)

Accordingly, the Cabinet of Ministers ceases to function if –

• the Prime Minister ceases to hold office
• Parliament rejects:

1. The Statement of Government Policy
2. The Appropriation Bill

• Parliament passes a vote of no-confidence in the Government

The Sinhala version of the 19^th Amendment varies slightly. The critical clause in Article 48(1) translates (roughly) that ‘…if the Prime Minister ceases to hold office upon removal from office, or resignation or otherwise…’, which commentators have argued suggests that power of removal still remains with the President (or at the least, that there are other grounds on which the Prime Minister may be removed). However, it is possible to read this provision in a manner consistent with the English version, as the expression “removal from office” can simply relate to the culmination of the process under Article 46(2)(b), wherein the Prime Minister ceases to be a Member of Parliament. Certainly, it would be a stretch to suggest that this discrepancy allows the President to ‘dismiss’ the Prime Minister in the manner which occurred on 26^th October, especially in light – once again – of the scheme of the 19^th Amendment, which was discussed above. In any event, linguistic supremacy does not apply to Constitutional provisions, which strengthens the basis for reading these slight variations in a harmonised manner.

Another argument which may be canvassed is that there is a slight circularity in Articles 46(2) and 48(1), i.e. that the Prime Minister’s office falls vacant if the Cabinet ceases to function, and that the Cabinet ceases to function if the Prime Minister’s office falls vacant. This may be used to suggest that there are other grounds on which the Prime Minister may be dismissed. However, once again, a careful reading of the text resolves this apparent circularity. There are certain factors apart from the Cabinet ceasing to function which can lead to a vacancy in the Prime Minister’s office (resignation, ceasing to be a Member of Parliament), and there are certain factor’s external to the Prime Minister’s office falling vacant which will cause Cabinet to cease to function (defeat of the Appropriation Bill or Statement of Government Policy etc.) A reasonable reading therefore exposes this alleged complication as blown out of proportion.

Accordingly, it is clear that none of the eventualities under Article 48 have transpired over the last two days, which means that the Cabinet still continues to function, and by necessary implication, the Prime Minister still holds office.

The Constitution appears to be silent about whether there are any other grounds on which the Cabinet will stand dissolved.

The Cabinet of a “National Government”

Another argument being touted – among others, by Prof. G.L. Peiris – is that upon the SLFP leaving National Government, the Cabinet expired, resulting in the expiration of the term of the Prime Minister. Article 46 (1) specifies a limit on the number of Cabinet and non-Cabinet ministers who may be appointed. The only exception to this is provided in Article 46 (4), when a “National Government” is formed, in which case “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 Parliament” (emphasis mine). Accordingly, the argument appears to be that with the departure of the SLFP from the National Government, the Cabinet was in excess of its constitutionally permissible limit, and therefore stood dissolved.

First, it must be noted that the Constitution does not explicitly recognise this as one of the grounds on which the Cabinet will stand dissolved, or cease to function.

Second, even if this were the case, the legal question which then arises for determination is whether departure of some members of the National Government will create a situation in which the Cabinet “ceases to function”.

In this regard, Article 46(5) reads –

“For the purpose of paragraph (4), 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.” (emphasis mine)

Accordingly, there is no requirement that the National Government be formed with the two parties securing the highest votes in Parliament; in other words, as long as the UNF (as the recognised political party/front having secured the highest number of votes) still has members of any other recognised political party or independent group in its ranks, it would fall within the meaning of a “National Government.” At the present writer’s last estimation, Hon. Seyed Ali Zahir Moulana, who was elected from the Batticaloa District on the Sri Lanka Muslim Congress ticket is the Deputy Minister of National Integration, Reconciliation and Official Languages – thereby, a member of the government, which would be a ‘National Government’.

Under these circumstances, the Cabinet would still “continue to function”, as it would still be within the constitutionally permissible limit of a National Government. By necessary implication, the Prime Minister’s term of office would continue to run.

Finally, even if the present writer is mistaken as to the specifics of the arrangement, and the ‘National Government’ did in fact cease to exist, there is no reason why the Cabinet having excess ministers temporarily should be treated as rendering it immediately dissolved. If there was a period of transition in which an ordinary government was converted to a ‘National Government’, and a process involving a resolution of Parliament approving the same, there should also be a similar process of reversal. This would – for example – take the form of the government being given a very short period of time within which it would be required to bring the number of Cabinet Ministers within the constitutionally permissible limit envisioned by Article 46 (4), and perhaps even securing a resolution approving that government. It must be borne in mind that the departure of members of the SLFP from the government would itself reduce the number of Cabinet and non-Cabinet Ministers. Thereby, the government’s task in reducing the Cabinet to within the permissible limit would be made significantly easier.

Thus, prima facie, it would appear that the office of the Prime Minister has not fallen vacant under any ground recognized in the Constitution of the Republic of Sri Lanka. This can only mean that the second “appointment” is null and void.

In any case, the events of the last two days – especially the prorogation of Parliament, represent practices that completely disregard basic principles of constitutionalism; as many have already stated – it resembles a ‘constitutional coup’, which must be condemned, and reversed with all haste.