Sacking of PM is Unconstitutional

The country, until two days ago, had a Prime Minister in office who commanded the confidence of parliament, which he had demonstrated not long ago by having a no confidence brought against him defeated in parliament.

President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister. At the press conference held on 27 October 2018, as reported in Adaderana (GL explains how PM was removed and why Parliament was prorogued) Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are (i) the cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1), and (ii) the President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Peiris is ‘compulsory removal’. What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.  

The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office. If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant.

The President is Powerless to Remove the Prime Minister in Sri Lanka

Our comrade Dr Reeza Hameed explains that ‘The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.’

Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution of Sri Lanka, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears. I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister. I disagree with this conclusion for the reasons I have given below. The tenure of Prime Minister’s office pre-Nineteenth Amendment is as follows.

The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he (1) is removed by the President, (2) resigns his office, or (3) ceases to be a Member of Parliament.” The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015.

Designing Constitutions in Muslim Countries: What Role for Islam?

Several new constitutions have been written in Muslim countries in the past decade; Afghanistan and Iraq wrote new constitutions after American-led invasions; Egypt wrote a new constitution after the ouster of Mubarak (and again after the military coup against Egypt’s first democratically elected president, Morsi) and Tunisia enacted a new constitution recently; several countries – such as Yemen and Libya have attempted to write permanent constitutions but ensuing chaos did not allow this to happen. Each of these constitution-making situations was very different and each country is a product of very different histories, cultures and socio-economic and societal foundations. Yet, one issue has been consistently highlighted: the status of Islam. To what degree will Islam be privileged in the constitution? Will new popularly elected governments be constrained by Islamic law? Will courts be able to set aside laws if incompatible with Sharia?

Many constitutions in the Muslim world contain clauses that recognize the Islamic character of the state. Yet, to date, there was little data on the landscape of Islam in constitutions. Separate research projects I collaborated on with Tom Ginsburg, Professor and Deputy Dean at the University of Chicago Law School and Moamen Gouda, Assistant Professor of Middle East Economics at Hankuk University of Foreign Studies sought to fill this gap. Our analysis showed that roughly half of all Muslim majority countries have some Islamic feature in their constitution.

Dr Reeza Hameed: ‘Naya Qanoon’ and the 19th Amendment

The draft 19^th Amendment reminds me of the story ‘Naya Qanoon’ (New Constitution) written by the late Saadat Manto, regarded by many as the finest writer of short stories in Urdu and as the greatest South Asian writer of the 20^th century. Set in pre-independence Lahore of the 1930s the main protagonist of the story is a tongawalla called Mangu. One day, Mangu over-hears two of his customers discussing a new constitution that was to be introduced in a few days. Mangu hated the British, and was sick and tired of the humiliation and abuse that he had suffered under British rule. Mangu is excited by the prospect of freedom that he believed would be ushered in by the constitution. He imagined it would be something bright and full of promise and spends the next few days getting ready to celebrate the arrival of the new constitution.

On the appointed day, he discovers that nothing has changed and everything appeared as before. An Englishman with whom he had an argument on a previous occasion approaches him for hire. Emboldened by the prospect of change promised by the constitution, Mangu wants to put his customer in place and in a sharp voice quotes his customer more than his usual fare for the journey. The encounter with the Englishman ends up in an altercation with Mangu landing several blows on