Sunday Times 2
The liability and viability of impeaching the executive president
Now the curtain has closed on the political drama which temporarily rendered Sri Lanka helpless without an authoritative and legitimate Government, and consequently brought the Public Service to a standstill. It also brought crisis and uncertainty to the national economy, national security and international relations.
President Sirisena: Can he be impeached?
What signalled the end of this disastrous period was the much awaited, highly acclaimed unanimous judgment of the Supreme Court which ruled that the President’s proclamation dissolving Parliament with effect from November 09, 2018 was unconstitutional and thus invalid.
In addition, the interim order of the Court of Appeal on Quo warrento applications, questioning the legality/authority of the appointments of Mahinda Rajapaksa as Prime Minister and the others appointed as ministers of the new Cabinet by the President, prohibited them from performing any functions in their impugned offices.
The rulings caused the new appointee Mahinda Rajapaksa to resign his office, paving the way for the President to appoint Ranil Wickremesinghe as prime minister and later sworn in the new Cabinet, even though he publicly declared that he is doing so against his personal and political conscience.
This situation renders the confirmation of the pending Quo Warranto cases futile and a non-event as the PM and ministers whose appointments are impugned have “vacated office” and the nation eagerly awaits the next public issue: “The liability and viability of President Maithripala Sirisena being impeached”.
It is an undisputable fact that this situation was brought about by a series of questionable decisions taken and implemented by President Sirisena. They were resisted firmly by Speaker Karu Jayasuriya and the majority in the Parliament.
Although it is apparent from the unanimous Supreme Court judgment that the President has violated the Constitution of Sri Lanka, in issuing a proclamation dissolving Parliament, the pros and cons should be briefly examined regarding the constitutionality and legitimacy of his actions, beginning with the removal of the Prime Minister Ranil Wikremesinghe on October 26. Each of these actions warrants a brief but separate analysis.
Removal of Prime Minister Wikremesinghe and appointing Rajapaksa in his place
The President (on expert legal advice) claimed he had acted in terms of the Constitution’s Art 42(4) which says that the President can appoint as prime minister “any MP who in his opinion commands the confidence of the majority in Parliament”
The President’s legal experts claim that this is a matter entirely within the President’s discretion and no one (not even the Speaker or the Supreme Court) can question his decision.
The issue that invariably arises is when and in what situation can the President make this appointment under Art 42(4)?
Art. 48 (1) says; on the prime minister’s removal, resignation or ceasing to hold office, the President can exercise the above power of appointing a PM.
Next issue is how can this power be exercised?
The stipulated condition is “the MP who, in his opinion, commands the majority in parliament”.
But, in exercising his discretion, the President cannot act arbitrarily according to his personal consideration. He is bound to take this decision according to “objective standards”
It is so because the power of the President has to be exercised subject to his RESPONSIBILITY TO PARLIAMENT [Art 33 (A)].
Art 33A of the Constitution (introduced by the 19th Amendment) says, “In the due exercise of his powers conferred by the Constitution and Laws pertaining to National Security the President is RESPONSIBLE TO PARLIAMENT.
This is the operative provision which supersedes and limits the otherwise excessive powers of the Executive President.
This responsibility would have surely compelled the President to accept the fact that Prime Minister Wikremesinghe won the confidence of the majority in Parliament in April 2018.
Proroguing parliament and swearing in a new PM
Though unquestionably the power of proroguing parliament is within the President’s constitutional power, the political climate and the background in which such act was committed reeks of mala fides.
As it was disclosed later, his ulterior motive was to obtain time for the newly appointed Prime Minister Rajapaksa and his cabinet to win over the support of a minimum of 113 MPs and prove the majority. This act, though apparently legitimate, would be regarded as “undemocratic” by the world community.
When the pressure mounted on the Speaker, he stood firm as Parliament’s custodian and asserted the supremacy and dignity of Parliament and democracy. This compelled the President to issue another proclamation summoning Parliament on December 7.
What transpired in Parliament after the vote of no-confidence was passed “by voice vote” and the ugly incidents which shocked the conscience of all law-abiding and civic-minded community is best forgotten.
Here, too, it can be argued that the President, in doing so, had completely disregarded his RESPONSIBILITY to Parliament and denied the people’s representatives their right to ratify or reject his unilateral decision to appoint a new prime minister and ministers from an apparent minority group.
When the UPFA withdrew from the UNP-led “National Government”, what the President should have done was to request the then prime minister and his cabinet to prove their majority in Parliament, and, accordingly, take appropriate action.
The situation certainly did not warrant an ex-parte removal of the sitting prime minister and ex-parte appointment of another prime minister through the “backdoor” .The process should have been transparent and legitimate.
Dissolution of Parliament on November 9
It is not necessary to repeat and analyse the unanimous judgment of the Supreme Court which adjudicated on the issue and, for plausible reasons given, held that the gazette proclamation dissolving parliament is a violation of the Constitution, and hence an invalid act which is of no force. This necessitated the revocation of the decision to hold elections to Parliament on January 5, 2019.
This deep exhaustive and rational analysis of the relevant constitutional provisions and the well-reasoned judgment are fully endorsed by the people who hailed the independent judiciary for safeguarding democracy.
What follows now? Is impeachment probable and viable?
Sri Lanka has had the bitter experience of witnessing the purported impeachment of the then Chief Justice Shirani Bandaranayake. Sri Lanka has also witnessed an attempted impeachment of President Ranasingha Premadasa, which was aborted half way, but, the present political situation is that the impeachment of President Sirisena is likely and probable. If it is brought by those who claim to have a hand in shaping the destiny of the country, the chances are that it will succeed given the present political situation.
It is a political issue that will ultimately decide whether President Sirisena will be implicated or not.
The pledge of the re-installed UNF government to implement its development programme within the remaining period of little over one year, and the publicly proclaimed refusal of President Sirisena to work with and cooperate with the new UNF Government might tilt the scale in favour of an impeachment process against President Sirisena.
In the event of an impeachment motion being moved — in terms of Art 38 (2) (a) (i) — in Parliament for the intentional violation of the Constitution, it appears that the Supreme Court judgment would suffice to prove this charge/ground for his removal without the necessity of going through an inquiry again under Art .38(2) (c)( d)(e) of the Constitution.
In such an event, the only positive defence the President could put forward is that his act of violating the Constitution was not “intentional”.
In other words, he will have to admit and plead in mitigation that he acted on the advice of his “legal experts” in taking those controversial decisions violating the Constitution.
Could such a defence be accepted by the people at large in a country which still upholds the sovereignty of the Constitution above the Executive President, the Cabinet, and Parliament remains to be seen.
(The writer is a President’s Counsel)