President Is Powerless To Remove The Prime Minister

By Reeza Hameed –APRIL 13, 2018

Dr. Reeza Hameed

Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears.

I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister.

I disagree with this conclusion for the reasons I have given below.

Tenure of Prime Minister’s office pre-Nineteenth Amendment

The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he

a) is removed by the President;

b) resigns his office; or

c) ceases to be a Member of Parliament.”

The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015.

President surrendered his power to dismiss the PM

The Nineteenth Amendment somewhat drastically curtailed the President’s powers and reconfigured the power relationship between the President, on the one hand, and Parliament and Prime Minister on the other. President Sirisena himself adumbrated the overall objective of the Nineteenth Amendment in the course of a speech he delivered on 23 April, 2015, when he said:

“In order to build a democratic and civilized society, it is necessary to prevent the emergence of dictatorship and taking control of state power, state assets, the judiciary, parliament and all of this to one’s own control that comes from the Executive Presidential system.

This should be immediately changed. I have worked towards this in the past three months. I am not aware of any leader in the world who had obtained an office with all these powers but has been as flexible in trying to get rid of those powers that had been bestowed on such a leader.

The Attorney General informed the Supreme Court that in keeping with my advice these powers should be removed. My Constitutional Adviser also informed the Supreme Court that these powers should be removed. We took a political decision on this. The Supreme Court has given a decision on this.” 

By the Nineteenth Amendment, the President surrendered not only the power he possessed to summarily dissolve Parliament at any time but also his power to dismiss the Prime Minister. The Nineteenth Amendment was seen as the first step in the process of enacting a new constitution to give effect to the mandate given by the people, an important element of which is the curtailment if not the abolition of the executive presidency. It was designed to insulate both Parliament and Prime Minister from the vagaries of Presidential whim. This commitment that has been built into the Nineteenth Amendment can neither be reversed nor nullified by an expansive reading of the President’s powers.

In the Nineteenth Amendment, the provision relating to Prime Minister’s tenure is located in Article 46(2). Article 46(2) reflects Parliament’s intention to withdraw from the President the power to remove the Prime Minister. It reproduces the corresponding provision from the principal enactment but without clause (a). Accordingly, the Prime Minister shall hold office unless

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