Sacking Of PM Is Unconstitutional

By Reeza Hameed –OCTOBER 29, 2018

Dr. Reeza Hameed

President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister.

At the press conference held on 27 October 2018, as reported in Adaderana (‘GL explains how PM was removed and why Parliament was prorogued’, October 27, 2018), Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are: 

1. The cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1). 

2. The President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Dr Peiris is ‘compulsory removal’.

What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.  

The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office.  

If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant. 

President cannot remove the Prime Minister

The President has no power under the Constitution to remove the Prime Minister from office for the reasons which I adumbrated many months ago in opinions expressed, inter alia, in the Colombo Telegraph. (See ‘The President Cannot Remove the Prime Minister’, February 20, 2018  and ‘The President is Powerless to Remove the Prime Minister’, April 13, 2018. I do not wish to repeat those arguments here as they are easily accessible online. 

Suffice it to say that, since the enactment of the Nineteenth Amendment to the Constitution, the President no longer has the power to dismiss the Prime Minister. The Nineteenth Amendment reconfigured the balance of power between the President on the one hand and Parliament and the Prime Minister on the other, making the Prime Minister’s continuance in office dependent on the confidence that Parliament has in him rather than that of the President. 

Section 14 (f) of the Interpretation Ordinance

The President’s power to remove the Prime Minister was expressly provided for in the 1978 constitution but it was taken away by the Nineteenth Amendment. That power cannot now be restored by relying on the Interpretation Ordinance. If it was intended that the President shall continue to enjoy this power, then it does not make any sense for this power to have been taken away by the Nineteenth Amendment. The President has in effect tried to grab with one hand what has been taken from the other. 

Dr Peiris has stated that the President, as the authority having the power to appoint the Prime Minister, also has the power to rescind that appointment. Dr Peiris has sought to derive this power, which does not exist in the constitution, from section 14(f) of the Interpretation Ordinance. The powers of the President have to be determined from the provisions of the constitution and not discovered from the Interpretation Ordinance.

Apart from the fact that the Constitution does not admit to the application of section 14(f) to interpret the relevant provisions, to read the words of section 14 (f) into the Constitution would lead to absurd conclusions. This would become apparent if one looks at the wording of section 14(f). It is provided in that section that “for the purpose of conferring power to dismiss, suspend, or re-instate any officer, it shall be deemed to have been and to be sufficient to confer power to appoint him.” It would mean that the President may not only dismiss the Prime Minister, but also suspend him; but that cannot be right.

Prime Minister compulsorily removed from office

Dr Peiris’ principal contention though is that following the withdrawal of the UPFA from the National Government the cabinet “no longer existed. When that cabinet went out of office, together with it went the Prime Minister. So, you have to start on a clean state”. In other words, according to Dr Peiris, the withdrawal of the UPFA has had the automatic effect of bringing about the dissolution of the Cabinet of Ministers, and with it a vacancy in the Prime Minister’s office.

He has constructed this argument relying on Article 46 of the constitution. Art 46 (1) states that the Cabinet of Ministers shall have no more than thirty in number; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty. 

This numerical limit was inapplicable to the cabinet of ministers of the National Government which was formed in 2015. Once the UPFA informed the Speaker of Parliament that it withdrew from the National Government, the numerical limitation set out in the Nineteenth Amendment Article 46(1) came into play. As the cabinet had more than thirty ministers at the time of withdrawal, the cabinet went out of existence. Just like that.

Article 46(2) stated that 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…” Therefore, the Prime Minister’s office became vacant when the cabinet of ministers ceased to function.

It is my submission that the automatic effect that Dr Peiris ascribed to the withdrawal of the UPFA from the unity government has no constitutional basis. Nowhere in the constitution is it stated that the discontinuation of the National Government shall result in the dissolution of the cabinet of ministers. Furthermore, there is nothing in the constitution to suggest that the effect of exceeding the maximum number in the cabinet would be its dissolution. The cabinet was still in existence and was functioning until two days ago, presumably with more than thirty members at the time. 

Read More