GR has vacated office and Ranil’s Appointment is Unconstitutional

Suri Ratnapala,
Emeritus Professor of Public Law, University of Queensland

The following views are expressed on the assumption that President Gotabaya Rajapakse has not vacated the office of President by resignation or on any other grounds specified in Art 38.

1. Impeachment of the President.

There are several grounds of impeachment against the President including intentional violation of the Constitution. This process may take too long given the urgency of the prevailing situation.

2. Sri Lanka has no President to exercise executive power as required by Art 4(b)

Article 4(b) of the Constitution vests the executive power of the People including the defence of Sri Lanka in an elected President. This is an aspect of the sovereignty of the People enshrined in Art 3.

Mr Rajapaksa has ceased to function as President. He is not performing executive or diplomatic functions overseas. He may take a vacation but he has not informed any responsible authority of that fact. He may go overseas for medical attention but he has not so informed anyone. He left the country in secrecy for the Republic of Maldives. He is not disclosing his future movements or programme. He has left the nation in the dark about his future intentions. This means that he has self-vacated his office and abandoned his constitutional responsibilities.

Article 38(1) of the Constitution sets out the circumstances in which the President is deemed to have vacated Office. However, Art 38(1) applies only in relation to a serving President. It has no application to the current situation where there is no functioning President.

3. The purported appointment of Mr Ranil Wickremesinghe as Acting President is Invalid

The purported appointment of the Prime Minister to act in the absence of Mr Rajapaksa is of no legal effect inasmuch as Mr Rajapaksa has ceased to be the President. The appointment is fatally flawed in other respects. The appointment is meant to be effective indefinitely as Mr Rajapaksa has left the country and derelicted his constitutional duties indefinitely. Since no appointment of an Acting Prime Minister has been made under Article 37 the validity of the Cabinet of Ministers is called into question.

Mr Wickremesinghe cannot be simultaneously the Acting President and the Prime Minister. There are clear demarcations of powers and responsibilities between the President and the Prime Minister. To take just one example it is the President who assigns functions to Cabinet Ministers and not the Prime Minister. The Prime Minister’s executive functions are determined by the President. President, on the contrary, can assign to himself any power or function. Thus, simultaneous exercise of the powers of President and PM by one person clearly violates the letter and intent of the Constitution.

Since Mr Wickremesinghe cannot be both President and PM, his appointment as Acting President is void or he is no longer the Prime Minister. If he has ceased to be PM, the whole Cabinet of Ministers stand dissolved. This is what Art 49(1) provides.

49. (1) On the Prime Minister ceasing to hold office by death, removal, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70 dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, other Ministers and Deputy Ministers in terms of Articles 43, 44, 45 and 46.

4. Parliament’s Duty

Mr Rajapaksa and Mr Wickremesinghe’s actions amount to a cynical subversion of Sri Lanka’s Constitution. In these circumstances, Parliament has power and a constitutional duty to immediately elect a qualified person to be the President to serve the unexpired period of Mr Rajapaksa’s term of office, as provided by Article 40 of the Constitution. That President may then assemble an interim national unity government that could stabilise the nation, restructure national debt, provide people with their immediate needs, and expeditiously hold elections for a future reformist government.

(The writer is also Board Member International and Comparative Law Society (ICLS)