President Sirisena acted constitutionally and practically

It is very clear that President Maithripala Sirisena, in his appointment of Mahinda Rajapaksa as the Prime Minister, replacing former Prime Minister Ranil Wickremesinghe, has acted constitutionally and practically, said prominent Political Analyst, President’s Counsel Dr. Jayatissa de Costa.

Speaking to the Daily News on the current political situation in the country, he called it a constitutional crisis. “On the one hand, the President using his powers has removed Ranil Wickremesinghe as the Prime Minister elected on August 15, 2015. Wickremesinghe did not have the required Parliament seats to form a single party government. He had only 85 seats out of the 225. Therefore, the UNP garnered the support of several other parties led by Patali Champika, Athuraliya Rathana Thera, the SLMC and others and formed the United national Front (UNF). Still they could not command an absolute majority and garnered only 106 seats. Hence, they formed the National Government together with the United Peoples Freedom Alliance UPFA.”

He blamed the 19th Amendment to the Constitution for the current predicament, claiming that it was hastily drafted and called it a constitutional disaster. “What was promulgated as the 19th Amendment is a recipe for disaster,” he said, adding that however, the country must run. Dr. Costa noted that the country is now under a Presidential Government and still governed by the 1978 Constitution. He said the most important power that the President had was the power to dissolve parliament one year after en election was held. “This provision was used by then President Chandrika Bandaranaike Kumaratunga to remove Ranil Wickremesinghe. But, the current President, Maithripala Sirisena does not have this power under the 19th Amendment.”

“Now what the President has done is to use his power under article 42 (4) of the Constitution. It says, ‘The President shall appoint as Prime Minister, a member of parliament who, in his opinion, is most likely to command the confidence of parliament.’ In the context, with regard to Mahinda Rajapaksa or Ranil Wickremesinghe, the voters’ opinion is not relevant as it a matter of Parliament. This is purely based on the President’s opinion. There is no yardstick to measure or gauge the popularity of the two. As Ranil Wickremesinghe led UNP had only 82 seats out of 225 and as a coalition the UNF obtained just 106 of the 225 and they still could not command an absolute majority.”

Therefore, Dr. Costa pointed out that the UNF joined the UPFA and had formed the National Government. “When the UPFA decided to leave the National Government, it collapsed. Now it is the President’s opinion that matters.”

He said that it is irrelevant if anyone brings in a No Confidence motion or defeats the budget. “In terms of ‘Opinion’ there is no hard and fast rule whether Parliament will rule or not. No one can challenge or interpret the President’s opinion and only the President can decide. Hence, I think this decision taken by the President is in accordance with the Constitution.” “A similar incident happened in Pakistan in the case Asma Jilani Vs the Govt. of the Punjab over the awarding of military degrees.

The judges of the Supreme Court had to decide and they used the doctrine of necessity. Similarly, when Ian Smith declared independence in the state of Rhodesia (modern Zimbabwe) the international community rejected it, but gradually accepted it. Now the government under the Presidency of Maithripala Sirisena and Premiership of Mahinda Rajapaksa has been accepted already by several countries and others would soon follow. In addition, all the Governors of the nine provinces have also accepted the new government under the combination of Sirisena and Rajapaksa. This is the only effective government at present. Hence, the above doctrines are applicable here,” Dr. de Costa noted. He pointed out that the alleged plot to assassinate President Sirisena and Gotabhaya Rajapaksa may or may not be true. But he said, nonetheless arrests have been made.

“The crime rate in the country is high and there is a definite need for stability. Hence, we need to resort to these measures in order to save the nation. Some may argue that parliamentary majority is required. But, the fact is that in the 2015 elections no one commanded absolute majority. So, how can a leader who only holds 85 seats of the 225, claim that he has the majority in Parliament?” Pointing to the recent Local Government elections, he said the Sri Lanka Podujana Peramuna had swept the boards across the country and they clearly won the election.

“Hence, the SLFP and the SLPP together would far exceed over 50% even at a General election.

This combination is adequate,” he said, adding that it is clear that the President had exercised his powers in this instance in accordance with the provisions of the Constitution and in a practical sense.

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