Review Of The Current Constitutional & Economic Crisis

By Narangoda Amarasena –NOVEMBER 3, 2018

Narangoda Amarasena

Recent change of government has created a turmoil in the country. I am of the opinion that the President would have prorogued the Parliament and during the prorogation period sought the opinion of Supreme Court about the constitutionality of removing the Prime Minister, appointing a new Prime Minister and a new Cabinet of Ministers as provided in Article 129 of the Constitution. Meanwhile the following text may explain the constitutionality of the issue in my point of view.   

Article 30 (1) – 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, and Commander-in-Chief of the armed forces. He/she is elected by the people for a term of 5 years. 

The President have the powers, inter alia; 

1. to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament by Article 33 (2) (a),

2. to preside at ceremonial sittings of Parliament by Article 33 (2) (b),

3. to summon, prorogue and dissolve parliament, Article 33(2) (c). Prorogation is subject to the maximum of 3 months as per Article 70 (3). However, the President cannot dissolve the parliament until the expiration of 4 and ½ years from the date appointed for its first meeting or the President is requested by a resolution passed by not less than two-thirds of the whole members of the Parliament as per Article 70 (1). Also, he may dissolve the Parliament subject to the Article 48 (2).

There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic – Article 42 (1).

The Cabinet of Ministers shall be collectively responsible and answerable to Parliament – Article 42 (2).

The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers – Article 42 (3).

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 – Article 42 (4).

Now the question arises if the President can remove the Prime Minister so appointed?

The President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers – Article 43 (1). Here the President has discretion in consulting the Prime Minister.  

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 – Article 43 (2). Here the President has no discretion but get the advice from the Prime Minister before appointing the Ministers.

As per Article 43 (3), 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. 

The total number of Ministers of the Cabinet of Ministers shall not exceed thirty – 46 (1) (a); and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty – 46 (1) (b). When the parties form a National Government, 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. However, the Constitution is silent whether this number is to be reduced when the coalition parties withdraw from the National Government. In any case it is clear that the Cabinet of Ministers will not be dissolved automatically when the coalition parties/independent groups withdraw from the National Government at any time. 

In terms of Article 46 (2), 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.

Up to now Prime Minister Ranil Wickremasinghe has not resigned and Cabinet of Ministers is not dissolved and accordingly a question will arise who the legal Prime Minister is now. It would have been better if the matter was referred to the Supreme Court for interpretation of the provisions of the Constitution if there is any ambiguity.    

A Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers and a Deputy 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) is removed from office under the hand of the President on the advice of the Prime Minister; 

(b) resigns from office by a writing under his hand addressed to the President; or(c) ceases to be a Member of Parliament.

It means the President cannot remove the Prime Minister from the post. However, under the powers (Article 43 (3) vested in the President he can change the subjects, functions and composition of the Cabinet of Ministers without affecting the continuity of the Cabinet of Ministers and their responsibility to the Parliament. Dissolution of the Cabinet of Ministers will take place as provided below.

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