22A: Supreme Court Makes Serious Errors

By Jayampathy Wickramaratne –

22A: Supreme Court Makes Serious Errors – Part I: Removal Of The PM

The Twenty-Second Amendment to the Constitution Bill (22A) was showcased by the Wickremesinghe-Rajapaksa Government as a restoration of the Nineteenth Amendment to the Constitution (19A) of 2015. Most 19A provisions had been removed by the Twentieth Amendment to the Constitution. Many, including the writer, pointed out that not all the provisions of 19A are sought to be introduced by 22A. The 22A Bill was challenged in the Supreme Court, mostly by Sinhala nationalist groups who consider the Presidential form of government to be one assurance of majoritarian dominance. 

The abolition of the ‘Executive Presidency’ was one of the significant demands of the Aragalaya, while going back to 19A was demanded as an immediate measure. Over the last year or so, support for the abolition of the Executive Presidency has seen a marked increase. A survey conducted by the Centre for Policy Alternatives (CPA) in April 2022 revealed that 74% of the respondents wished for the complete abolition of the Executive Presidency compared to 50.3% in October-November 2021. It is of interest that the figure among the Sinhalese who wish for abolition (74.2%) was higher than the national percentage, clearly indicating that Sinhala nationalism is on the retreat.

The Supreme Court (Jayasuriya CJ, Aluwihare J and Obeysekere J) has determined that several key provisions of 22A require the approval of the People at a referendum in addition to a two-thirds majority in Parliament. They are: that the President should not have the power to dismiss the Prime Minister; that Ministers shall be appointed by the President on the advice of the Prime Minister; and that if the President does not make appointments to the independent Commissions as recommended by the Constitutional Council within fourteen days, the appointments would be deemed to have been made. These three provisions were part of the Constitution under 19A. The Supreme Court, in 2015, did not consider that they would require approval by the People at a referendum. There is thus a clear shift in the thinking of the current Supreme Court. The Government has said that a referendum will be avoided by amending the Bill at the committee stage in Parliament. Thus, the President would only be required to consult the Prime Minister in appointing Ministers. The President can dismiss a Prime Minister even when the latter has a clear majority in Parliament. Premier Dinesh Gunawardena, beware!

Appointment and removal of PM

To the writer, the decision of the Supreme Court in the matter of appointing Ministers did not come as a surprise, given the reasoning of the Court (Jayasuriya CJ, Janak De Silva J and Obeysekere J) in its determination of the Samagi Jana Balavegaya’s Twenty-first Amendment to the Constitution Bill (21A), holding that the abolition of the Executive Presidency required approval at a referendum. The writer disagrees with that determination, which will be the subject of a forthcoming paper. But the determination in the 22A case that the President’s power to dismiss a Prime Minister who commands the confidence of Parliament is an essential part of executive power did come as a surprise.

The Nineteenth Amendment took away the power of the President under previous Article 47(a) to remove the Prime Minister. The removal of the Prime Minister thus became a power of Parliament. New Article 48(2) provided that if Parliament rejects the statement of government policy or the Appropriation Bill or passes a vote of no-confidence in the government, the Cabinet of Ministers shall stand dissolved. The President could then appoint a new Prime Minister.

The 20A Bill sought to empower the President to remove the Prime Minister. The proposed provision was challenged. A five-member Bench of the Supreme Court, however, held that in view of the fact that the President who holds the People’s executive power in trust for the People is the Head of the Cabinet of Ministers and the appointing authority of the Prime Minister, empowering the President to remove the Prime Minister and appoint a new Prime Minister who in his opinion commands the confidence of Parliament, does not infringe the sovereignty of the People. The Court did not explicitly state that such a power of removal is an essential part of executive power but seems to have gone on the basis that the appointing authority also has the power of removal.

In the 22A case, the Attorney-General submitted that the removal of the Prime Minister should arise only where the Prime Minister ceases or fails to command the confidence of Parliament and that in such an instance, it is more appropriate for Parliament to move a motion of no confidence against the Prime Minister. He submitted further that the President acting on his own accord in removing the Prime Minister, where he is of the opinion that the Prime Minister no longer commands the confidence of Parliament, would amount to an arbitrary exercise of power. The Court’s response was that currently, that is under 20A, the President has the power to remove the Prime Minister. The circumstances in which the Prime Minister may be removed will not be limited to a situation where the Prime Minister no longer commands the confidence of Parliament. The Court took the view that taking away that right affects the balance of power that currently exists and amounts to a relinquishment and erosion of the executive powers of the President, impinging upon the sovereignty of the People.

It is respectfully submitted that the learned Judges were in error in both the 20A and 22A cases. Both 19A and 20A had a similar provision relating to the appointment of the Prime Minister: ‘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 word ‘most’, which makes all the difference, escaped the attention of the learned Judges in the 20A case, who assumed the wording to be ‘who in the President’s opinion, is likely to command the confidence of Parliament’. It is clear that the President has no discretion in the matter of appointing a Prime Minister. He must necessarily appoint ‘the Member of Parliament’ who, in his opinion, is most likely to command the confidence of Parliament. The Sinhala version of Article 42(4) is even more clear, using the phrase ‘vishvaasaya uparima vashayen athi’ (‘utmost confidence’). 

Thus, there can be only one Member of Parliament who fits the constitutional requirement. That Member has a right to be appointed as the Prime Minister. To use equal protection phraseology, the office of the Prime Minister is a single-person class, a class which consists of one person. It follows that a ‘new Prime Minister’ cannot be the Member of Parliament who commands the ‘utmost confidence’ of Parliament, that Member of Parliament having been removed. It is submitted that to empower an authority to remove the one person who is entitled to be in a single-person class is arbitrary. 

Public Trust Doctrine

Our courts have, on countless occasions, reiterated the application of the public trust doctrine to the exercise of power. In Re Nineteenth Amendment to the Constitution 2002, a seven-member Bench of the Supreme Court reiterated that the doctrine applies to powers of check attributed to one organ of government in relation to another: ‘The power that constitutes a check, attributed to one organ of government in relation to another, has to be seen at all times and exercised, where necessary, in trust for the People. This is not a novel concept. The basic premise of Public Law is that power is held in trust.’

It thus follows that the power to dismiss a Prime Minister at will when Parliament is functioning properly and the Prime Minister commands the confidence of Parliament is an obvious violation of the doctrine. 22A sought to remedy this situation, as 19A did, by taking away the power of the President to remove the Prime Minister.

Removal of the PM is not essential to executive power

The Court also seriously erred by assuming that the power to dismiss a Prime Minister is an essential part of executive power. While the President is directly elected by the People, the Prime Minister is elected indirectly by the very same People. The People elect the Parliament, and the Member of Parliament who commands the utmost confidence of that elected Parliament has the right to be appointed Prime Minister. The President has solely to identify who that Member is. It is not an essential part of executive power.

The writer respectfully submits that it would be difficult to find a worse example of arbitrary action, in matters of public law in a functioning democracy, than the removal of a Prime Minister by a President at a time the former commands the confidence of Parliament. Regretfully, the Supreme Court has held that to take away such arbitrary power requires the approval of the People at a referendum.

That such removal can be challenged in the Supreme Court or that the ‘new’ Prime Minister can be defeated in Parliament is no answer. Why open the doors to manipulation in the meanwhile? When the Constitution is so clear as to who can hold the position of Prime Minister, why allow the President to dismiss a Prime Minister at all?

If, as the Supreme Court has determined, the power to remove a Prime Minister is an essential part of executive power, the appointment of the Prime Minister must also be an essential part of such power. It necessarily follows then that the power of appointment and removal of the Prime Minister cannot be given to Parliament! A constitutional amendment that provides that the caretaker government during the election would continue until Parliament meets for the first time, that both the Speaker and the Prime Minister would be elected by Parliament at its first meeting and that any change in the position of the Prime Minister would be a matter for Parliament only would need a referendum. It is Parliament that can best determine which Member commands its confidence. If the Prime Minister is the Member who commands the utmost confidence of Parliament, would it be an alienation of executive power to transfer the power of appointment from the President to Parliament? From what the Court has determined, it would be so. Sounds illogical, doesn’t it?

The power to dismiss PM opens the door for manipulation

The turmoil created by the removal of a Prime Minister can also give rise to manipulation of the kind the country witnessed during the fifty-two-day period of constitutional crisis in 2018. Following the purported removal of Prime Minister Ranil Wickremesinghe, who commanded the confidence of Parliament, Mahinda Rajapakse was appointed as the ‘new’ Prime Minister. A few Members of Parliament were enticed to cross over, but when it was clear that the ‘new’ Prime Minister was unable to secure a majority, President Sirisena purported to dissolve Parliament. Upon several fundamental rights applications being filed, the Supreme Court granted leave to proceed and issued an interim order staying the operation of the dissolution. Parliament then met, and the ‘new’ Prime Minister and his ‘government’ were defeated on the floor of the House on several occasions. Upon an application being made by 122 out of 225 Members of Parliament for writs of quo warranto against the ‘new’ Prime Minister and ‘Ministers’, the Court of Appeal issued interim orders restraining them from functioning. The manipulations continued, and, in the meantime, the Supreme Court struck down the purported dissolution. It was only after the Supreme Court granted special leave to appeal against the order of the Court of Appeal but refused to stay the operation of the interim order that the ‘new’ Prime Minister ‘resigned’. However, President Sirisena refused to re-appoint Ranil Wickremesinghe as Prime Minister, indicating that he would instead be willing to appoint Sajith Premadasa, who steadfastly declined. Finally, Sirisena had to eat humble pie and appoint Wickremesinghe. It is in the backdrop of such ugly episodes in our history that the power to dismiss a Prime Minister must be considered. 

(To be continued…)

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