The constitutionality of change in premiership

By Neville Ladduwahetty-October 29, 2018, 8:57 pm 

This is in response to comments that the removal of Ranil Wickremesinghe as Prime minister is unconstitutional. The justification for this claim is that since the UNP with 106 members has the majority in Parliament, he as leader of the UNP commands the "confidence of Parliament", as stated in Article 42 (4) of the 19th Amendment. The identical wording relating to the appointment of a Prime Minister is contained in Article 43 (3) of the 1978 Constitution.

The irony is that Article 42 (4) is also stated as the basis for his removal in the letter forwarded to him. Therefore, since Article 42 (4) or Article 43 (3) cannot be the basis for his removal and also be the basis for him to remain as Prime Minister there is a need to examine and interpret Article 42 (4) in its full scope.

Article 42 (4) states: "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".

It is crystal clear that it is the "President’s opinion" that decides his choice. This overrides the issue of the person "likely to command the confidence of Parliament" on grounds of a majority in Parliament, even after the so called "Unity government" ceased to exist following the withdrawal of the UPFA from the government.

The reason for the primacy of the "President’s opinion" over the majority in Parliament or any other, is the fact that Sri Lanka’s Constitution is based on a Presidential system and not on a Parliamentary system. In Sri Lanka’s Constitution, Article 4 (b) states: "The executive powers of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People".

ArtIcle 30 (1) of the 19th Amendment states: "There shall be a President of the Republic of Sri Lanka who is the Head of State, Head of the Executive and of the Government …."

Furthermore, as per Article 42 (1) the Cabinet of Ministers shall be "charged with the direction and control of the Government", and as per Article 42 (3) the President shall be "the Head of the Cabinet of Ministers".

Therefore, in view of the Articles cited above and taking its contents individually and collectively it is abundantly clear that a President, elected by the People as the Head of the Executive and the Cabinet of Ministers who are collectively responsible to Parliament for the "direction and control of the Government", has to have as a Prime Minister a person who in the President’s opinion would support him to guide the "direction and control of the Government", rather than having a person whose ideology is at variance with that of the President; a fact that was reported to have been building up and which culminated at a recent Cabinet meetings. If the primary basis for appointing as the Prime Minister is the person who has the largest numerical majority in Parliament but who is ideologically different, it would be a fetter to the direction and control of the government. It is for this reason that the opinion of the President matters more than numerical majorities, particularly in instances where coalition governments are made up of ideologically disparate political parties.

This fact is starkly evident in US politics whenever the President is from one party and the majority in Congress is from another. Similar situations could arise in Sri Lanka too. Fortunately, in the case of Sri Lanka the Constitution provides for the President to exercise his prerogative in regard to his "opinion" in appointing the Prime Minister. This permits the Executive powers of the People to be exercised through the President, free of constraints of the Legislative Branch as in the US when circumstances arise. Therefore, even if the Executive under the President does not have a majority in Parliament all it could affect the passage of Legislation. Aside from this disadvantage, Executive activities could continue unabated as it does when a Provincial Council is dissolved, and the Executive functions of the People are exercised by the Governor. Therefore, there is nothing unconstitutional in whether the political party under an Executive President has a majority in Parliament or not. This is an inherent feature of the Separation of Powers. However, it should not be overlooked that although a majority in Parliament is not a constitutional necessity, it is needed to prevent a rejection of "Government Policy, or the Appropriations Bill or to pass a vote of no-confidence in the government" (Article 48 (2). Therefore, while the lack of a majority does not amount to a violation of the Constitution, a majority in Parliament becomes a matter for political survival.

In contrast, under a Parliamentary system there is no choice other than for the leader of the political party with the largest majority to be accepted as the Prime Minister, and as such, become the Head of the Cabinet of Ministers and the Government. Therefore, the claim that the measure adopted by the President in appointing former President Mahinda Rajapaksa as the Prime Minister being unconstitutional, has no basis whatsoever in the presidential system.