Sunday Times 2
Demands of the people and constitutional constraints
The burning issues that the people of Sri Lanka are confronting, with crippling power cuts, every day, gas and petrol shortages, inability to access or purchase basic needs – food, medicine – have resulted in vast scale demonstrations by all strata of society. This clear and unquestionable suffering of the people has to be addressed urgently. Their resolution requires urgent short-term and medium-term actions under the national economy, beginning immediately with negotiating a rescue package from the International Monetary Fund (IMF).The national economy is in peril, with few weeks of reserves and facing default on its International Sovereign Bonds (ISBs).
The demonstrations have now morphed into powerful demands by the people requiring that the President resign from office, and more recently that all 225 Members of Parliament resign. While these demands can be met, they cannot be resolved in a vacuum. They can only occur within the bounds of the legal system of Sri Lanka, principally the Constitution of Sri Lanka.
Broadly, therefore, the present Government, will urgently have to resolve the demands on two parallel and interrelated tracks. The first track is the economy and that should be the priority of the Government and the second, the legal and constitutional track.
Fixing the Economy
There has been a deluge of solutions offered by highly qualified economists monetary and fiscal specialists and academics to address the most pressing issues that are at the heart of the demonstrations. The economic issues. There is,however,consensus among many of them that three fundamental actions need to be undertaken urgently by the Government.
First, a rescue package needs to be negotiated with the International Monetary Fund (IMF) immediatelyto bring monetary and fiscal discipline and stability that is presently in complete disarray. Particularly important would be the IMF’s remedies under Article IV for exchange rate stabilization. The Fund remedies should help Sri Lanka restore confidence and credibility in the international capital markets forraising capital and controlling inflation. The remedies can have a positive impact on rating agencies and can also create an environment for mobilizing capital formuch needed foreign direct investment.The internationally recognized andaccomplished team selected by the Presidentfor Multilateral Engagement and Debt Sustainability will help enormously to manage the crisis. But the IMF’s package is going to take a period of time to be fully implemented.
Second, and concurrently, also with immediacy, the Government, must start to form a team to negotiate the conclusion of debt moratoriums and restructuring, mostly with ISB holders to ward off immediately, yields due on ISBs.Moratoriums and restructuring will enable GOSL to retain and mobilize reserves for a period of time until the IMF “rescue package” is implemented.Basically, future yields on ISBs and future repayment periods need to be effectively negotiated. Repayments can then resume. This is a very complex exercise where the Government must engage both international financial and legal experts. In fact, the IMF’s package will be conditioned upon thedemonstrated ability of the Government to sustain debt over the long term. Hence, the urgent need to initiate negotiations.
Third, also urgently required are, targeted bridge loans and grants obtained from friendly regional and multilateral financial agencies, States and or regional entities. The funds obtained must be targeted in the short and medium term to obtain energy sources to provide power, transportation, basic food and medicines and essentials.
The above are measures that can be immediately addressed no matter the form of Government, to bring theneeded relief to the people.
The Constitutional Constraints
The demands of the people to remove the President or that he voluntarily resigns, can only be accomplished within the limits of the Constitution. There is a lot of confusion here. Even Constitutional Law Specialists have not clearly explained the implications and consequences.The Constitution under Article 38 contemplates six ways in which the office of the President can be vacated.
Under Article 38, the office of the President will be vacant:(a) upon his death; (b) if he resigns his office by writing under his hand to the Speaker; (c) if he ceases to be a citizen of Sri Lanka; (d) if the person elected as President fails to assume office, within one month from the date of commencement of his term of office; (e) if he is removed from office as provided in the next succeeding paragraph; or (f) if the Supreme Court in the exercise of its powers under Article 130(a) determines that his election was void……..
Resignation from Office
Of the above, two, Article 38 (b) voluntary resignation, or Article 38(e) removal from office are the demands of the people.
The President has stated presently that he does not intend to, or will resign, as it is his right under the Constitution. But if the President does resign there are two immediate consequences that the Constitution contemplates and addresses.
The first is where the President resigns and the Parliament has not been dissolved, as are the circumstances now. In these circumstances, under Article 40(1)(a) and (b), Parliament is obligated “to elect, as President one of its Members who is qualified to be elected to the office of President.” The Member so elected will serve out the rest of the term of the President. The election has to be held soon as possible, and in no event later than one month from the date of the occurrence of the vacancy. The vote shall be by secret ballot and “by an absolute majority” of the votes cast. The Constitution does not contemplate a situation where there may not be an absolute majority.
Where the President has vacated office and Parliament has also been dissolved,the President is elected “by the new Parliament within one month of the first meeting” (Article 40 (1) proviso).Until as such time as the new parliament is convened and the election is held, the Prime Minister shall act as the President (for the 30-day period referred to) and the Prime Minister will appoint another member from the Cabinet to act as the Prime Minister. (Article 40 (1)(c),provides, if in the event the office of the Prime Minister is vacant then “the Speaker shall act in the office of President”. It is assumed that the President so elected shall serve out the remaining period of office from the date of the vacancy.This second method based on a prior dissolution of Parliament and the President resigning thereafter, cannot happen just yet, because the President cannot dissolve Parliament until two and half years have elapsed since the Parliament was elected. The two and half years since Parliament was elected will only have been completed in September 2022. Any earlier dissolution of Parliament requires a Parliamentary Resolution requesting the President to dissolve Parliament. (Paragraph 12 of the 20th Amendment to the Constitution amending Article 70 of the Constitution).
In both cases, during the time period from the date on which the President’s office falls vacant and the date the new President is elected by Parliament, the Prime Minister will act as President (Article 40(1)(c) of the Constitution).
Also, it must be noted that the Member who is ultimately elected as Interim President by Parliament must be qualified under the Constitution to do so.
There is precedence for the application of Article 38(1)(a) where the office of the President became vacant due to the death of the President. In 1993, with the assassination of President Ranasinghe Premadasa, then Prime Minister D.B. Wijetunge was elected by Parliament to serve out the rest of President Premadasa’s term. Mr. Ranil Wickremasinghe was appointed by the President as acting Prime Minister in accordance with Article 40(1)(c) of the Constitution.
Removal of a President
There are two methods by which the Constitution contemplates the removal of the President. First, under Article 38(1)(e) where Parliament removes him from office under the prescribed terms of Article 38(2)(a). Accordingly, the President can be removed from office for “(i) intentional violation of the Constitution (ii) treason (iii) bribery (iv) misconduct or corruption involving the abuse of the powers of his office or (v) any offence under any law, involving moral turpitude, and setting out full particulars of the allegations made and seeking an inquiry thereon by the Supreme Court”.
Thefirst procedure is, any Member of Parliament by Notice of Resolution to the Speaker allege that the President had committed one or more of the above referred acts, provided that the resolution is signed by two thirds of all 225 members of the Parliament. If the Resolution is then passed by two thirds of Parliament, the President is removed from Office (Article 38(2)(b)(i)).
The second procedure for removal is that if the Notice of Resolution is signed by not less than 50 per cent of Members of Parliament (i.e. by 113 members or more), it receives less than the two thirds majority; and yet the Speaker is satisfied that the allegations merit the Supreme Court’s inquiry, he will refer the allegations in the Resolution to the Supreme Court for its determination. At the Supreme Court’s hearing the President is given the opportunity to defend himself. If the Supreme Court after its deliberations finds the President guilty of the alleged charges in the Resolution, its decision is referred back to the Parliament whereupon if a Resolution based on the Supreme Court’s verdict is passed by two thirds of the Parliament, the President is removed from office (Articles 38(b)(ii), 38(c), 38(d) and 38(e)).
Hence the procedures to remove a President are extremely tedious, time consuming and heavily evidence laden.
An Option
In the circumstances, meeting the people’s demands to remove the President or insist on his resignationfrom office is difficult to achieve under the present circumstances. Of course, the easiest would be for the President to voluntarily leave office and let the relevant Constitutional provisions described above guide government.
Amending the Constitution to meet the demands cannot also be achieved unless there is a two thirds majority in Parliament. That simply is not there presently. Hence, asking the President to repudiate the 20th Amendment as some politicians have asked isuntenable. Requesting the President to delegate all presidential powers to Parliament as some leading politicians have called for, maybe a possibility, but the challenge is how that can be accomplished under the Constitution without actually having to amend it, because for any amendment to the Constitution a two-thirds majority in Parliament is required. The proposed 21st Amendment will also run into the same procedural problems of ensuring that there is a 2/3rds majority in Parliament. Can anything else be done by Parliament?
If the President is steadfast in his position not to resign, then the next best option is to examine whether his executive powers can belimited by Parliament, without actually moving an amendment to the Constitution. In other words, to make the office of the President a nominal one. To achieve that end requires certain pre-requisites. First, there has to be subtlety of interpretation of the relevant provisions of the Constitution and yet retain the integrity of the Constitution. Second, there has to be at least a simple majority in Parliament (i.e. at least 113 Members). Third, there must be sacrifice, compromise and consideration by all major political parties, including the governing party. Fourth, there have to be disciplined and self-limiting measures taken by Parliament. Fifth, the option must be limited in time only to as such time as a new general election can be convened or a new Constitution adopted at some future time.
At the core of the proposal is for Parliament topass by a simple majorityexercising its legislative power under Article 75 of the Constitution, a bill to obtain or require the delegation of key executive powers from the President to Parliament. The justification for such a proposal principally rests in Article 42 of the Constitution which reads: “The President shall be responsible to Parliamentfor the due exercise, performance and discharge of his powers, duties and functions under the Constitution.”For, avoidance of any doubt, the responsibility is to Parliament, is not to himself or the Prime Minister and the Cabinet.
To preserve the integrity of the Constitution, the subtlety of interpretation lies in distinguishing between “Executive Procedure” and “Executive Acts” of the President. For the most part, the executive acts of the President are clear in the Constitution. There is paucity, however, in it on executive procedure. Delegation to Parliament of Executive Procedure is at the heart of the proposal. An example of how this might work can be demonstrated by reference to Article 43(3) of the Constitution that states: “The President shall appoint as Prime Minister, the Member of Parliament who in his opinion is most likely to command the confidence of Parliament.” While the President retains the “Executive Act”of appointment, Parliament under the recommended option will have the right of exercise of the delegated executive procedure (maybe through a simple majority in Parliament) as to which Member of Parliament commands the confidence of Parliament. Parliament, will then advise, instructor direct the President to appoint that Member of Parliament as the Prime Minister (“Executive Procedure”). This way the integrity of the Constitution will be retained.To reiterate the sole objective should be to use this interpretive mechanism to relegate the Presidency to a nominal role.
For the proposal to work a pre-requisite is that the present Opposition must have at least 113 members in Parliament. Obtaining 113 or more also demonstrates that the majority the present Government enjoys has shifted to the Opposition. As a result, it also means that the Government will not be able to enact any future legislation. A no confidence motion (NCM) can be passed. Consequently, the President, anyway, will have to consider Article 43(3) and determine, according to his opinion, as to who commands the confidence of Parliament to be Prime Minister. Under this proposal, he will be required to obtain Parliament’s advise and direction to form his opinion and appoint as Prime Minister,the Member selected by Parliament.
Even so, this proposal too is vulnerable to attack as an implicit amendment to the Constitution and surely a Supreme Court decision maybe sought. In a democracy, that would be welcome.
If this option is accepted by consensus of all parties there are possibilities for achieving the most urgent demands of the people, e.g. of creating a National Government or even alternatively an entity called a Parliamentary Governing Council (PGC) made up of 4, or maximum 5 leaders drawn from the parties having the highest representation in Parliament with the leader of the party having the highest single representation in Parliament being the Chairman (equivalent to Prime Minister) of the PGC. The Council Members will be co-equals; the Chairman having only coordinating powers.The PGC could form a Cabinet of Ministers of not more than 10-15 drawnfrom present Members of Parliament from any party represented in Parliament, the portfolios being determined to be the most critical to respond to the current economic crisis.For example, portfolios such as Finance (including Planning and Plan Implementation), Foreign Affairs, Justice, Defense and National Security, Health, Agriculture, Investment and Business Development, Education, Industries, Human Rights and Tourism should be mandatory portfolios.The PGC and cabinet must show maximum diversity of gender and minority representation.
The PGC members and Ministers should be eminently qualified to hold office and experienced.Most importantly,they should not have been charged, were facing charges at anytime or otherwise have been previously prosecuted in any Court of Law for money laundering, bribery and corruption. They must declare their assets prior to taking office, and swear to not engage in any activities forbidden by law while in office. An oath must be taken to that effect before being appointed by the President. By this way, the supremacy of Parliament is regained.
If this narrow window is utilized diligently, by Parliament, there can be a glimmer of hope for a fresh beginning, clean government, the restoration of democracy, of civility and unity in Sri Lanka, in the face of these dark and daunting times confronting the nation. It would be an acknowledgment for all the sacrifices made by those who proclaim and demand a united Sri Lanka and a government devoid of corruption.
(Prof. Srilal Perera is former Chief Counsel of MIGA, of the World Bank Group and is presently Adjunct Professor of Law of the University of Miami, USA.)