President Counsel Ali Sabry in his opinion on the reading of the Constitution has pointed out that the President’s appointment of Mahinda Rajapaksa as Prime Minister was done in accordance with the Constitution.
There is a Constitutional law discussion which has arisen after the President decided to swear in former President Mahinda Rajapaksa as the Prime Minister of the country.
Former Prime Minister Ranil Wickremesinghe 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, he noted in a statement to the media.
Sabry highlighting Article 42 (1) of the Constitution as, “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”
Further he points out Article 42 (4) which states, “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 which restricts the number of cabinet members to 30 and deputy and state ministers to 40.
The outgoing cabinet was beyond the aforesaid numbers. Thus it was only possible to form such a large Cabinet in the event of a National Government.
A National Government is specified in Article 46 (5) of the Constitution which reads as follows;
“For the purpose of paragraph (4), National Government means, a Government formed by the recognised 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.
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 Prime Minister is to prove his majority what matters is the President’s opinion. 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 position.