Could His Excellency President Maithripala Sirisena invite Hon. Mahinda Rajapakse to form the new government or swear in Hon. Mahinda Rajapakse as the Prime Minister?
President’s Counsel Ali Sabry explains his understanding on his Facebook page:
There is a constitutional law discussion which had arisen after the President had decided to swear in Former President Mahinda Rajapakse as the Prime Minister of the country. Former Prime Minister Hon. Ranil Wickramasinghe continues to claim that he is the Prime Minister. It is interesting to study the Constitutional Provisions governing the appointment and/or seizure of the post of Prime Minister in terms of the law. In other words the Supreme Law of the land.
Article 42 (1) of the Constitution reads as follows and thus talk about formation of a government. ➢ Article 42 (1) reads as follows;
42. (1) There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic. Thus formation of the government begins with the formation of the cabinet. In that scenario the President who is the head of the cabinet of ministers [Article 42(3)] can appoint a member of parliament who in the President’s opinion is most likely to command the confidence of the Parliament.
➢ Article 42 (4) reads as follows; The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament. The President in terms of Article 43(3) of the constitution is entitled at any time to change the composition subject and functions of the Ministers. Once the President and the Prime Minister decides to form the cabinet.
Such cabinet shall be restricted to numbers specified in Article 46 (1)(a) Article 46(1)(b) of the constitution. ➢ Article 46 (1)(a) Article 46(1)(b) reads as follows; 46. (1) The total number of– (a) Ministers of the Cabinet of Ministers shall not exceed thirty; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty. The outgoing cabinet was beyond the aforesaid numbers. THE ISSUE ARISES AS TO WHETHER IT WAS CONSTITUTIONALLY POSSIBLE?
• Yes. It was possible because of the provisions in Article 46(4) and Article 46(5) of the Constitution in terms of which in the event of a national government the Parliament has the right to decide on the number of Ministers and the Ministeries.
What is a National Government is specified in Article 46 (5) of the Constitution which reads as follows; ➢ Article 46 (5) reads as follows; For the purpose of paragraph (4), National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups.
Accordingly and admittedly the National government which was formed ceased to exist as one of the constituent parties thereof namely United People’s Freedom Alliance [UPFA] had withdrawn from the said Government. In other words, the Government of the day upon the withdrawal of UPFA ceased to exist. Thus, the necessity to form a new government had constitutionally arisen. Next logical question is when the National Government ceases to exist what happens to the Cabinet and the Prime Minister? When the government had fallen there cannot be a cabinet. The Cabinet ipso facto dissolves. It is important to look at the provisions in Article 46 (2) of the Constitution which talks about the Prime Minister’s post and his tenure in office. ➢ Article 46 (2) reads as follows;
The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he –
(a) resigns his office by a writing under his hand addressed to the President; or
(b) ceases to be a Member of Parliament.
Accordingly, with the withdrawal of UPFA the then existing unity government and the Cabinet of Ministers cease to exist so does the Prime Minister. Hence, the post of Prime Minister had fallen vacant. Thus it’s a new beginning which begins with the formation of the new Government. First of such test is for the President to invoke Article 42(4) of the Constitution.
➢ Article 42(4) reads as follows- The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament. Accordingly, the President appointing a member of Parliament who in the President’s opinion is likely to command the confidence parliament is perfectly constitutional. At this point in time which is an interim period until such time the Parliament is convened and the Hon. Prime Minister is to prove his majority what matters is the President’s opinion. H.E President Maithripala Sirisena in his opinion had appointed Hon. Mahinda Rajapakse as the Prime Minister of the Republic. It goes without saying whoever who is appointed as the Prime Minister, shall show his majority in the Parliament to continue to function in the said posito n.
❖ THIS IS MY PERSONAL OPINION ON THE READING OF THE LAW WHICH IS OPEN FOR DISCUSSION ON THE CONSTITUTIONALITY OF THE SAME.
• ALI SABRY, President’s Counsel
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