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Monday, September 26, 2022

Critique to SC decision on 22 A (02): Removing PM not essential to executive power – by Dr Jayampathy Wickramaratne

Image: The turmoil created by the removal of a Prime Minister can also give rise to manipulation of the kind the country witnessed during the fifty-two-day period of constitutional crisis in 2018.

In Part I of this article, the writer argued that the determination of the Supreme Court in the case of the Nineteenth Amendment was preferable to that of the Twenty-second Amendment Bill (22A).

“The writer submits that in 22A, the Court seriously erred by assuming that the power to dismiss a Prime Minister is an essential part of executive power. While the President is directly elected by the People, the Prime Minister is elected indirectly by the very same People.”

Removal of the PM, not executive power

The writer submits that in 22A, the Court seriously erred by assuming that the power to dismiss a Prime Minister is an essential part of executive power. While the President is directly elected by the People, the Prime Minister is elected indirectly by the very same People. The People elect the Parliament, and the Member of Parliament who commands the utmost confidence of that elected Parliament has the right to be appointed Prime Minister. The President has solely to identify who that Member is. It is not an essential part of executive power.

The writer respectfully submits that it would be difficult to find a worse example of arbitrary action, in matters of public law in a functioning democracy, than the removal of a Prime Minister by a President at a time the former commands the confidence of Parliament. Regretfully, the Supreme Court has held that to take away such arbitrary power requires the approval of the People at a referendum.

That such removal can be challenged in the Supreme Court or that the ‘new’ Prime Minister can be defeated in Parliament is no answer. Why open the doors to manipulation in the meanwhile? When the Constitution is so clear as to who can hold the position of Prime Minister, why allow the President to dismiss a Prime Minister at all?

If, as the Supreme Court has determined, the power to remove a Prime Minister is an essential part of executive power, the appointment of the Prime Minister must also be an essential part of such power.

It necessarily follows then that the power of appointment and removal of the Prime Minister cannot be given to Parliament! A constitutional amendment that provides that the caretaker government during the election would continue until Parliament meets for the first time, that both the Speaker and the Prime Minister would be elected by Parliament at its first meeting and that any change in the position of the Prime Minister would be a matter for Parliament only would need a referendum. After all, it is Parliament that can best determine which Member commands its confidence. If the Prime Minister is the Member who commands the utmost confidence of Parliament, would it be an alienation of executive power to transfer the power of appointment from the President to Parliament? From what the Court has determined, it would be so. Sounds illogical, doesn’t it?

Power to dismiss PM opens the door for manipulation

The turmoil created by the removal of a Prime Minister can also give rise to manipulation of the kind the country witnessed during the fifty-two-day period of constitutional crisis in 2018.

Following the purported removal of Prime Minister Ranil Wickremesinghe, who commanded the confidence of Parliament, Mahinda Rajapaksa was appointed as the ‘new’ Prime Minister. A few Members of Parliament were enticed to cross over, but when it was clear that the ‘new’ Prime Minister was unable to secure a majority, President Maithripala Sirisena purported to dissolve Parliament.

Upon several fundamental rights applications being filed, the Supreme Court granted leave to proceed and issued an interim order staying the operation of the dissolution. Parliament then met, and the ‘new’ Prime Minister and his ‘government’ were defeated on the floor of the House on several occasions. Upon an application being made by 122 out of 225 Members of Parliament for writs of quo warranto against the ‘new’ Prime Minister and ‘Ministers’, the Court of Appeal issued interim orders restraining them from functioning.

The manipulations continued, and, in the meantime, the Supreme Court struck down the purported dissolution. It was only after the Supreme Court granted special leave to appeal against the order of the Court of Appeal but refused to stay the operation of the interim order that the ‘new’ Prime Minister ‘resigned’. However, President Sirisena refused to re-appoint Ranil Wickremesinghe as Prime Minister, indicating that he would instead be willing to appoint Sajith Premadasa, who steadfastly declined. Finally, Sirisena had to eat humble pie and appoint Wickremesinghe. It is in the backdrop of such ugly episodes in our history that the power to dismiss a Prime Minister must be considered.

Constitutional Amendments: Flexibility and Rigidity

Every written constitution lays down the procedure for amending it or making a new constitution. It is the general rule that such a procedure is more rigorous than the procedure followed in making ordinary law. In most countries, ordinary laws are passed by a simple majority of the legislature/s, while constitutional changes need a special majority, usually a two-thirds majority. In Sri Lanka, the Independence Constitution, as well as the 1972 Constitution, prescribed a two-thirds majority.

“It is generally accepted that a Constitution should neither be too flexible, which is too easy to amend, nor too rigid, which is very difficult to amend”

Under the 1978 Constitution, while a two-thirds majority is a general rule for amendments, changes that affect certain ‘entrenched’ provisions of the Constitution listed in Article 83 require the approval of the People at a referendum as well. Article 3, one of the entrenched provisions, states: ‘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.’ Article 4 sets out the manner in which legislative power, executive power, judicial power, fundamental rights and the franchise are exercised. Article 4(b), which is relevant to this discussion, is in the following form: ‘the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People’. Interestingly, in both the Draft Constitution contained in the report of the Select Committee on Constitutional Reform and the 1978 Constitution Bill, Article 4 was included in the list of provisions to be entrenched. However, it was deleted from the list at the committee stage, thus signifying a conscious decision to leave the power to change the manner of the exercise of sovereignty to Parliament.

It is generally accepted that a Constitution should neither be too flexible, which is too easy to amend, nor too rigid, which is very difficult to amend. A Constitution that is too flexible is open to political manipulation, and minorities—ethnic, political, and otherwise—become vulnerable. A Constitution that is too rigid is unable to respond to changing public opinion and can lead to frustration, strengthening the case for extra-constitutional action. A Constitution can also be made more or too flexible/rigid by judicial interpretation. Judges dealing with constitutional issues, therefore, have an onerous task before them.

17A and 19A: SC allows flexibility

From the day the 1978 Constitution was adopted, the reduction of Presidential power and making the Presidency a ceremonial position have been matters of intense debate.

The Seventeenth Amendment Bill of 2001 sought to restrict the powers of the President by making appointments to certain important positions subject to the approval of a Constitutional Council and requiring the President to appoint members of Commissions that are expected to be independent only on the recommendation of the Council.

The Supreme Court, in a welcome determination, stated that although there is a restriction in the exercise of the discretion hitherto vested in the President, that restriction per se would not be an erosion of the executive power of the President.

In its determination on the Nineteenth Amendment Bill of 2015, the Court (Sripavan CJ, Dep J and EkanayakeJ) took another step forward.

The core of the determination is that an essential requirement for the avoidance of a referendum is that the President continues to be the head of the executive, and the ultimate ‘act or decision’ of his executive functions must be retained by him. The use of the word ‘or’ in the phrase ‘act or decision’ used by the Court needs to be emphasised. Thus, it suffices if the final act is that of the President, even if the decision is not his. The Supreme Court stated that Article 42, which states that the Cabinet of Ministers is charged with the direction and control of the government of the Republic and is collectively responsible and answerable to Parliament, conclusively establishes that the President is not the sole repository of executive power under the Constitution.

This has been emphasised by a seven-member Bench In Re the Nineteenth Amendment to the Constitution 2002 as well. Executive power should not be identified with the President and personalised and should be identified at all times as the power of the People, the Court held in that case.

Reference was also made to Justice Wanasundera’s dicta in the Thirteenth Amendment case that the Cabinet of Ministers, of which the President is a component, is an integral part of the mechanism of government and the distribution of the executive power and any attempt to bypass it and exercise Executive powers without the valve and conduit of the Cabinet would be contrary to the fundamental mechanism and design of the Constitution.

It is of much significance that the Court did not find that provisions requiring the President to appoint Ministers and Deputy Ministers on the advice of the Prime Minister required a referendum. This is in line with the essence of the determination. The President continues to be the appointing authority and, as such, is not removed from the appointing process. The act of appointing Ministers continues to be that of the President, although the decision is that of the Prime Minister.

On the other hand, the clauses that provided that the Prime Minister shall determine the subjects and functions assigned to Ministers and may at any time change such assignment would require a referendum as the President would not be involved. The Court thus relaxed the rigidity of the amending procedure, although to a limited extent. (To be concluded)

(The Island)

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