Was sacking RW unconstitutional?

By Raj Gonsalkorale

In an article titled “Sacking RW, appointing MR & Dissolution of Parliament are unconstitutional”, published in the Colombo Telegraph, Prof. Suri Ratnapala articulated the reasoning for his conclusion that all three acts of the President were unconstitutional.

The writer is particularly interested in seeking Professor Ratnapala’s views on the sacking of Ranil Wickremesinghe from the point of view of two clauses in the 19th Amendment to the Constitution which incidentally were not referred to by Prof. Ratnapala in his article.

The enquiry by the writer is purely as a lay person who is trying to find some constitutional logic in the decisions taken by the President.

The question is only in relation to the removal from office of Wickremesinghe and not on the dissolution of Parliament – which is now before the Supreme Court.

The two clauses not referred to by Prof. Ratnapala are the following:

46 (4) notwithstanding anything contained in paragraph (1) of this article*, where the recognised political party or the independent group which obtains highest number of seats in Parliament forms 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.

46 (5) for the purpose of paragraph (4), national government means, a government formed by the recognised political party or the independent group which obtains the highest number of seats in Parliament together with the other recognised political parties or the independent groups.

*46. (1) the total number of – (a) ministers of the cabinet of ministers shall not exceed thirty; and (b) ministers who are not members of the cabinet of ministers and deputy ministers shall not, in the aggregate, exceed forty.

The writer’s understanding is that the President and the UPFA agreed on entering into an MoU with the UNF-led by Wickremesinghe on 20 August, 2015, and Wickremesinghe was appointed as the Prime Minister on 21 August, 2015. The formal MoU between the UPFA and the UNF was sanctioned by the Parliament on 4 September, 2015.

Government or no government?

A question arises of whether these were done in line with clause 46 (4) and clause 46 (5).

If so, in effect, a national government came into being after 21 August and it was formalised on the 4 September.

Are we to assume then that this Government continued till 26 October, 2018 and that it ceased to exist once the UPFA withdrew from it on that day? If so, what is the Government that existed soon after the UPFA withdrawal, if the government that was there before this date was a National Government? Was there a government or no government?

If the National Government ceased to exist after 26 October, having been formed on 21 August, 2015, with the appointment of Wickremesinghe as Prime Minister, would the Cabinet of Ministers have existed after 26 October?

Prof. Ratnapala says that as per clause 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”, the President had no constitutional power to dismiss the Prime Minister Wickremesinghe on 26 October.

However, is it not a fact that once the National Government ceased to exist on 26 October, upon the withdrawal of the UPFA from it, the Cabinet of that Government ceased to exist and correspondingly, as per the first part of clause 46 (2), is it not correct to state that the Prime Minister too ceased to exist as there was no Cabinet of Ministers? (Clause 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.)

Based on the premise that the incumbent Prime Minister ceased to exist on 26 October, would not the President have had the constitutional right, indeed a duty, to appoint someone else as per clause 42 (4) – 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?

Onus with the Opposition

The Constitution is not explicit about the need for the person so selected to demonstrate that he/she has the confidence of the Parliament. The onus appears to be with the Opposition to prove otherwise.

The action taken by the members led by the UNF to pass a vote of no confidence on Prime Minister Rajapaksa and his Government, particularly the process adopted, is now a matter of disagreement and debate.

This leads to an interesting dichotomy. If Wickremesinghe and the members opposed to Mahinda Rajapaksa were of the opinion that the President erred in removing Wickremesinghe from office and appointing Rajapaksa as the Prime Minister – which they contend is an illegal appointment – why are they bringing a vote of no confidence on an illegal prime minister and his illegal cabinet?

Instead, shouldn’t they have moved a vote of confidence on Wickremesinghe in order to demonstrate that he is the person who enjoys the confidence of the majority?

Would not a No-confidence Motion on someone who is illegally appointed, render the vote of no confidence itself invalid?

Unless Wickremesinghe and those supporting him, had in fact accepted that Rajapaksa has been appointed constitutionally and is the legal Prime Minister.

One last question for Prof. Ratnapala: Since the UPFA and the UNF contested at the general election of August, 2015, and did not seek a mandate from the people to form a National Government after the election, would not the eventual formation of the National Government have been an unconstitutional act unless a referendum was held to seek a mandate from the people?

Would it not have been an infringement of Clause 3 of the Constitution – sovereignty of the people. In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights, and the franchise?

Many seem to be of the view that – as it was done with the President’s decision to dissolve Parliament – those who believed the dismissal of Wickremesinghe was unconstitutional, should also have sought a binding opinion from the Supreme Court, and that this would have averted the ugly and disgraceful scenes that were witnessed in the Parliament.