Act wisely or perish

Friday 15th July, 2022

What is unfolding on the political front is baffling and unprecedented, and even legal experts have been left rereading the Constitution and racking their brains. Curiously, Prime Minister and Acting President, Ranil Wickremesinghe, on Wednesday night, asked Speaker Mahinda Yapa Abeywardena to nominate someone acceptable to both the government and the Opposition for the post of Prime Minister so that an all-party government could be formed. The Speaker said yesterday morning that President Gotabaya Rajapaksa had not yet tendered his resignation. So, when Wickremesinghe asked the Speaker to name a new PM, he himself was the Prime Minister ‘exercising, performing and discharging the powers, duties and functions of the office of President’, during President Rajapaksa’s absence, in keeping with Article 37 (1) of the Constitution, and not in terms of Article 38, which specifies what should be done when the President ceases to hold office. Can a PM, acting in the office of the President, appoint another PM? If he or she can do so by exercising the powers of the President, doesn’t he cease to be the PM as well as Acting President upon making such an appointment? Or, did Wickremesinghe want to ensure that the ruling party and the Opposition would have their nominee for the post of the PM ready well in advance so that an all-party government could be formed as soon as President Rajapaksa’s resignation was officially confirmed? Or, did he just jump the gun?

The Prime Minister, under the 20th Amendment to the Constitution, may seem to be as powerless as he/she was thought to be before the implementation of the 19th Amendment. But his/her powerlessness could be deceptive, as evident from the actions of the current PM cum Acting President. It is the PM who immediately succeeds the elected President, when the latter dies, resigns or is removed. Hence the need to appoint as the PM a person who is acceptable not only to the government and/or the parliamentary Opposition but also the people in whom sovereignty resides; he or she should be considered the President in waiting.

Legal experts agree that everything the Constitution provides for should conform to Article 3, which says, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” Franchise, which is part and parcel of sovereignty, must be factored in when the Prime Minister is appointed, and it is wrong for a President to ignore this fact, and act according to his or her whims and fancies, taking cover behind Article 43 (3), which allows him or her to ‘appoint as Prime Minister the Member of Parliament who in his opinion is most likely to command the confidence of Parliament’. The numbers that an MP can muster in the House cannot be considered the sole criterion for the appointment of the PM, for ‘the confidence of Parliament’ cannot be reduced to mere numbers; any President with an average IQ score should be able to understand this fact, and the appointment of the Prime Minister must not run counter to the people’s franchise. Hence anyone other than an elected MP should not be appointed the PM if he or she is to be acceptable to the public. The same goes for the Acting President elected by Parliament.

Now that President Rajapaksa has reached a safe destination, he is expected to send in his resignation, and it may be possible to conduct next Wednesday’s election in Parliament to elect a new President. It behoves all MPs to heed Article 3 of the Constitution when they elect the new President if protests are to cease, and the country is to lift itself out of the current politico-economic crisis. They will place both themselves and the public in peril if they disregard the people’s franchise and sovereignty, which is being exercised in the streets at present.

Armed forces and the police may be able to protect the parliamentary complex against protesters, and, in fact, its safety must be ensured, at all cost, but nothing will help restore people’s faith in Parliament if its members do not forsake Mammon and elect the right person as the President, who will have to be a capable elected MP with no history of violence, corruption and abuse of power. Most of all, he or she must not be a stooge of the corrupt Rajapaksa family, which is hell-bent on manipulating Parliament to safeguard its interests.