The Possible Different Scenarios

By Mass L. Usuf

Mass Usuf

There are two decisions currently pending in the Courts. Firstly, the petition challenging the validity of the gazette notification in relation to the dissolution of Parliament and, secondly, the action instituted by way of a Writ of Quo Warranto.

This column will explore the implications based on the possible outcome of the different scenarios. An understanding of the outcomes is considered important because as citizens, we are duty bound to ensure the continuation of the institution of democracy.

Interim period

If the dissolution of parliament gazette is held valid. The Parliament will stand dissolved. Then elections will follow. Something of concern at this point is regarding the period between dissolution and the swearing in of the new government post-election. The constitution states in Article 18. (1):

“The Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall notwithstanding such dissolution continue to function and shall cease to function upon the conclusion of the General Election …. “

At the time of going to press, there is no functioning Cabinet of ministers to run the affairs of the state because there is a pending case.  If the court decides that the present government is without authority, there obviously will be no Prime Minister and a Cabinet of Ministers.  In this case, the president has to immediately appoint a prime minister and a cabinet of ministers in consultation with the Prime Minister. 

At present, the President has publicly declared that he will not appoint Mr. Ranil Wickremesinghe as the Prime Minister. The flip side would mean that he is prepared to appoint any other. To emphasise his reluctance in making such an appointment, the President said at the SLFP convention that even if the entire 225 members of the parliament unanimously approve his Premiership, he would still not appoint Mr. Wickremesinghe. 

Two legal issues stem from this (1) the President by implication accepts the need to appoint a prime minister. (2) His refusal is a violation of the constitution and the sovereignty of the people.

Analysing point (1) above, there is acquiescence on the side of the President regarding the need to appoint a prime minister.  From this, it becomes clear that this position paves the way for two other possibilities –

(a) the President accepts the appointment of Mr. Rajapakshe as not valid or, 

(b) he accepts that the No Confidence Motion passed in the parliament on 14th and 16th as valid. 

Is the President’s position not to appoint Mr. Wickremesinghe as Prime Minister sustainable? Let’s make a wild assumption. Elections are held and UNP wins. Will the President then also say he will not appoint Ranil as PM? This type of behaviour is unconstitutional and should not be allowed to take precedence. It may invariably lead to a dictatorial or arbitrary rule.

With regard to (2) above namely that the President is in violation of the constitution and the sovereignty of the people. This has four more implications. 

(a) the President is in violation of his oath of office. Article 32 (1) of the constitution reads:

“The person elected or succeeding to the office of President shall assume office upon taking and subscribing the oath or making and subscribing the affirmation, set out in the Fourth Schedule, in Sri Lanka before the Chief Justice or any other Judge of the Supreme Court.”

The Fourth Schedule is as follows:

“I …………………… solemnly declare and affirm / swear – that I will faithfully perform the duties and discharge the functions of the office of …………………………………. in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”

(b) he is in violation of the parliamentary procedures relating to the appointment of the prime minister. 

When the Speaker who is the final authority on matters relating to Parliament and in the performance of his duties under Article 4 (a) which states:

“the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;”

informs the President of the passage of the no confidence motion in Parliament, that notice to the President has to be accepted by him.  Inaction to that notice is the next violation.

(c) he is in violation of the constitutional responsibility to appoint as prime minister the member who commands the confidence of the parliament.  Article 42 (3) stipulates: 

“The President shall appoint as Prime Minster the Member of Parliament who in his opinion is most likely to command the confidence of Parliament.”

(d) he is in violation of the sovereignty of the people who have entrusted to the executive presidency the responsibility of carrying out the executive functions of the people. Article 4 (b) of the constitution states:

“The Sovereignty of the People shall be exercised and enjoyed in the following manner: – 

(b) 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;

For sake of argument, in a situation where the Parliament unanimously decides that Mr. Wickremasinghe should be named the Prime Minister, what authority does the President have not to affect such appointment.  The members of the parliament are representing the legislative sovereignty of the people.  Not doing so is totally violating the sovereignty of the people.

It has to be borne in mind that the President’s powers are not absolute.  It is subjected to limitation as seen in Article 42 below:

“The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers duties and functions under the Constitution and any written law, including the law for the time being relating to public security.”

Therefore, the president is answerable to the parliament for the discharge of his functions as the executive president.

Second Scenario

If the gazette for dissolution of parliament is held not valid, then problems will follow, if the Maithri/Mahinda camps do not respect it. They would resort to public agitation for an election. What role civil societies must play in this instance is an important question that needs answers? In my view, as a matter of principle, calling for elections should not be supported. The reason for this depends on the outcome of the next petition that is the writ of quo warranto.

The second action, the Writ of Quo Warranto, if it is held that the holding of office is without authority, then we do not have a government. The President must appoint a Prime Minister who commands the confidence of the House and in consultation with the Prime Minister the Cabinet of Ministers.

If it is decided that the offices held are valid, then there is a de jure government. However, since this government does not have the confidence of the House, a No Confidence Motion following the parliamentary standing orders will inevitably be brought and passed. After which, the President must appoint a Prime Minister who commands the confidence of the House and in consultation with the Prime Minister the Cabinet of Ministers.

For us citizens, this is not party politics. This is about protecting democracy and democratic institutions. There is an important role for civil society to play. Every citizen must rise up to the occasion and get involved in a peaceful manner.