Petitioning courts against President’s refusal to appoint some MPs as ministers

The Constitutional Madhouse – Part 1

By C. A. Chandraprema-January 24, 2019, 12:00 pm 

When former minister Sarath Fonseka was denied a ministry by President Sirisena last December, he threatened to go before courts to obtain what he deems to be his rightful place in the UNP government, formed following the restoration of Prime Minister Ranil Wickremasinghe to that post. He has not yet followed up on that threat, but we now hear that some of the SLFP members who defected to the UNP recently are also contemplating petitioning courts because they, too, have been denied ministerial appointments. The fact is that after the 19th Amendment, these aggrieved parties do have provisions under which they can petition courts to seek redress.

Article 43(1) of the present Constitution, as amended by the 19th Amendment, states that the President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers. Thus, to determine the number of ministries in the government and the assignment of subjects to those ministries, the President is not bound to obtain the Prime Minister’s advice but can do so if he so wishes. However, under Article 43(2) when the President appoints individuals to the Cabinet slots determined in accordance with Article 43(1), he is mandatorily required to obtain the advice of the Prime Minister. Article 43(2) goes as follows: "The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined." The word ‘shall’ denotes a mandatory requirement.

The 19th Amendment made the President’s actions justiciable and that is what gives certain individuals the confidence that they would be able to go to courts and obtain redress. According to the system that all Sri Lankans had got used to until the 19th Amendment came along, it was the President who would decide who got ministries and who didn’t, and there was no higher authority that could be appealed to if the President refused to appoint someone as a minister. What happened after 1994 and 2001 when the parliamentary elections of those years were won by political parties opposed to the incumbent President was that the latter bowed to the public will and appointed as Ministers anybody recommended by the Prime Minister. After 15 December 2018, we once again have a situation where the President represents one party and the Prime Minister another political party.

Where today’s situation differs from that of 1994 and 2001 is that in this case, the President tried to call a general election and was thwarted in that attempt due to new provisions, introduced into the Constitution by the 19th Amendment, and now he is constrained to work with the very people he had tried to get rid of. Thus, the new Article 43(2) now comes into play and though the President is required by the Constitution to heed the advice of the Prime Minister in appointing Ministers, he has not abided by that requirement. In the recent judgment in the fundamental rights case relating to the dissolution of Parliament and the calling of a general election, the Supreme Court has observed as follows:

"Article 35 (1) of the 1978 Constitution stipulated that during the period when a President holds office, no proceedings can be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him in his official or private capacity. Thus, prior to the 19th Amendment, Article 35 (1) conferred a blanket immunity upon a President [so long as he holds office] from being sued in respect of any act or omission done by him in his official capacity qua President or in his private capacity. However, as is well known, the proviso to Article 35 (1) introduced by the 19th Amendment to the Constitution introduced a very significant change. It states, "Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity."

"Thus, the proviso to Article 35 (1) entitles any person who complains that an act or omission by the President in his official capacity has violated a fundamental right of that person to institute a fundamental rights application under and in terms of Article 126 of the Constitution against the Hon. Attorney General and seek a determination by the Supreme Court with regard to his complaint. In other words, the proviso to Article 35 (1) makes acts or omissions by the President in his official capacity justiciable within the limited sphere of an invocation of the jurisdiction for the protection of fundamental rights conferred on the Supreme Court by Article 118 (b) read with Article 126 of the Constitution and subject to the stipulation that the Hon. Attorney General [and not the President] is to be made the Respondent to the fundamental rights application filed by that person."

Give and take: Giving and then taking, literally!

If the dissolution of parliament and the calling of a general election are deemed to be within the rubric of ‘executive and administrative’ action of the President, then the appointment of ministers also falls into the same category, and the parties, aggrieved by President Sirisena’s decision to refuse ministerial appointments to some MPs, recommended for appointment by the PM, can, in fact, move the courts. What then is preventing them from filing action in courts? We saw that in the wake of the SC suspending the gazette dissolving Parliament and calling a general election, some people were so emboldened as to actually file a petition in courts asking for an order to have the President’s mental health examined. Then why has no one yet gone to the Supreme Court to complain that there has been a fundamental rights violation due to the President’s refusal to appoint certain individuals as ministers?

The stumbling block is Article 43(3), which was also introduced to the Constitution by the 19th Amendment. What Article 43(3) says is that "the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament." What this means is that even if the aggrieved parties go to courts and obtain a judgment to the effect that their fundamental rights have been violated because the President has not abided by Article 43(2) of the Constitution, and the President is forced to swear the said individuals in as ministers of varying rank to the few vacancies still available, the President can sack the whole lot under Article 43(3) even before they leave the Presidential secretariat after the swearing in! Article 43(3) does not restrict the President’s ability to change the composition of the Cabinet in any way he likes and at any time he wishes.

There is a practical issue here in that the 30 Cabinet slots available under the Constitution are already taken and those who have been left out may have to be satisfied with a non-Cabinet portfolio. What Article 44(1) says about non-cabinet Ministers is that "The President may, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers who shall not be members of the Cabinet of Ministers. The use of the word ‘may’ in this provision indicates that it will be the President who has the discretion to decide whether he is going to appoint any non-Cabinet ministers at all. Even if the Prime Minister advises him to appoint some non-cabinet ministers, the final decision whether to do so or not will be the President’s. If, by some chance, the President decides to have non-Cabinet ministers, under article 44(2) it will be the President who determines the assignment of subjects and functions to those no-Cabinet Ministers. He can consult the Prime Minister on the assignment of functions to those non-Cabinet ministers only if he deems such consultation to be necessary. Furthermore, under Article 44(3) the President may, at any time, change any assignment made to any non-Cabinet Minister. That basically leaves only the deputy minister slots. However, according to Article 45(1), it is the President who has the final discretion to decide whether there will be any deputy minister positions at all. What Article 45(1) says is that The President ‘may’ on the advice of the Prime Minister, appoint from among Members of Parliament, Deputy Ministers to assist Cabinet Ministers in the performance of their duties. Once appointed, it will be the minister concerned who will assign subjects to his deputy and the President has no role in that. However, the initial decision to have a deputy minister for a given Cabinet minister will be with the President. Thus, we see that even though article 43(2) purports to empower the Prime Minister to appoint Cabinet Ministers, he actually has no such power in terms of the other provisions of the 19th Amendment. Welcome to the madhouse that is the Constitution of Sri Lanka today!