IGP and the Armed Forces, to ensure that in carrying out their duties, they act strictly in accordance with the Constitution and the rule of law

statement by professionals on constitutional crisis

(Lanka e News – 02.Nov.2018, 12.20PM Recent actions of President Maithripala Sirisena purporting to remove Mr. Ranil Wickremasinghe from office as the Prime Minister and the purported appointment of Mr. Mahinda Rajapaksa in his place have caused a constitutional and political crisis.

As professionals who value and defend constitutional democracy, we consider it our duty to explain to the citizens the correct constitutional position on this issue.

The Nineteenth Amendment to the Constitution is one of the success stories of the ‘100 day programme’ of the UNF-UPFA unity government. Both President Sirisena and Prime Minister Wickremasinghe jointly gave political leadership to its enactment in Parliament by a two-thirds majority. The 1978 Constitution, as amended by the Nineteenth Amendment, is the only constitutional document that should govern the actions of Sri Lanka’s President with regard to the Prime Minister.

According to the Constitution as it presently stands, once a Prime Minister is appointed, his/her office will be vacated only in limited instances i.e. resignation, ceasing to be a Member of Parliament (Article 46), OR where he is removed by virtue of the dissolution of Cabinet which will automatically occur upon the defeat of the Statement of Government Policy or the Appropriation Bill, or upon a motion of no-confidence being passed against the Government (Article 48).

As the objective of the Nineteenth Amendment was to move towards a Parliamentary democracy, the Nineteenth Amendment expressly repealed the power of the President to remove the Prime Minister that existed under provisions of the original 1978 Constitution and its 18th Amendment.

Prime Minister Wickremesinghe has not resigned or ceased to be a Member of Parliament. Neither has dissolution of Cabinet occurred (as there was no defeat of the Statement of Government Policy or the Appropriation Bill, and as no motion of no-confidence was passed against the Government).

There are suggestions that the Cabinet of Ministers stood dissolved upon the UPFA leaving the National Government. However, this argument too does not hold water. Unlike Article 48 which specifically refers to the dissolution of the Cabinet of Ministers in specified situations, the provisions relating to a National Government entail no such consequences. Thus even upon the discontinuance of a National Government (which is a matter for Parliament to decide on), the only consequence will be that the Constitutional ceiling on the number of Ministers will become operative..

Also, Mr. Ranil Wickremesinghe was appointed Prime Minister on 21 August 2015, before the National Government was formed, by the President as the Member of Parliament who in his opinion is most likely to command the confidence of Parliament after the United National Party won the highest number of seats at the General Elections held on 17 August 2015.
In any event, it would appear that the National Government continues, since the Sri Lanka Muslim Congress, which was an initial partner of the National Government, remains a partner thereof. 

In the absence of a vacancy in the office of Prime Minister, the attempt by President Sirisena to remove Prime Minister Wickremesinghe and to install Mahinda Rajapaksa MP in that office is both undemocratic and unconstitutional.

The resultant constitutional crisis could most appropriately have been dealt within Parliament, by a floor test. In fact, the proper constitutional course of action would have been to have demonstrated in Parliament by vote, an absence of confidence in Prime Minister Wickremesinghe and the Government PRIOR to President Sirisena embarking on his present course of action.

However, far from permitting Parliament to resolve this issue, President Sirisena has embarked on a further undemocratic step of proroguing Parliament, thus attempting to prevent Parliament from debating and resolving the matter, and perhaps paving the way to facilitate cross-overs. As Speaker Karu Jayasuriya’s letter demonstrates, the prorogation was proclaimed in breach of Parliamentary traditions, as the Speaker had not been consulted prior to the prorogation.

Leaving this crucial constitutional issue unresolved in Parliament will result in further aggravating the political, economic and social crisis.

We therefore call upon:

1) President Sirisena to forthwith revoke the Prorogation, to facilitate the immediate resolution of this crisis through Parliament;
2) Speaker Karu Jayasuriya to forthwith convene Parliament, to facilitate the immediate resolution of this crisis through Parliament;
3) All government leaders and MPs to abide by, and not to transgress, the principles and provisions of the Constitution.
4) All political leaders, to ensure that violence and unrest are prevented;
5) All Members of Parliament, to ensure that they vote in accordance with the mandate the People have granted them, and not in consideration of financial or other benefits offered;
6) All public servants, to ensure that they do not obey any instructions granted by unconstitutionally appointed persons, and that they uphold the Constitution and the rule of law;
7) The Inspector General of Police and the Armed Forces, to ensure that in carrying out their duties, they act in a non-partisan manner, and strictly in accordance with the Constitution and the rule of law.

Signed By

Prof. Jayadeva Uyangoda, Professor Emeritus, University of Colombo
Prof. Vijaya Kumar, Professor Emeritus, University of Peradeniya
Prof. Kumar David, Professor Emeritus, University of Hong Kong
Prof. Gamini Keerawella, Professor Emeritus, University of Peradeniya
Prof. Navaratne Bandara, Retired Senior Professor, University of Peradeniya
Prof. Jayantha Seneviratne, University of Kelaniya
Prof. Sumathy Sivamohan, University of Peradeniya
Prof. Upul Abeyratne, University of Peradeniya
Prof. Chandraguptha Thenuwara, University of the Visual and Performing Arts
Dr. Upatissa Pethiyagoda
Upul Jayasuriya, President’s Counsel
J.C. Weliamuna, President’s Counsel
Dr. Jayampathy Wickramaratne, President’s Counsel
Nissanka Nanayakkara, President’s Counsel
Rajan Philips, Political Critic
Dr Lionel Bopage
Dr. Ananda Galappatti
Lal Wijenayake, Attorney-at-Law
Tissa Jayatilaka
Chandra Jayaratne
Dr. Paikiasothy Saravanamuttu
Dr. Asanga Welikala, University of Edinburgh
Ameer Faaiz, Attorney-at-Law
Pujitha De Mel, Lecturer, University of Colombo
Mrs. Chamantha Weerakoon, Attorney-at-Law
Danesh Casie Chetty, former diplomat
Lux Jothikumar, Attorney-at-Law
Viran Corea, Attorney-at-Law
Ravi Jayawardana, Attorney-at-Law
Thishya Weragoda, Attorney-at-Law

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by     (2018-11-02 06:54:09)

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