Demands of the people and constitutional constraints

“Desperate times call for desperate measures” – Hippocrates

The burning issues that the people of Sri Lanka are confronting, with crippling power cuts, gas, fertiliser and petrol shortages, inability to access or purchase basic needs – food, medicine – have resulted in daily demonstrations. This clear and unquestionable suffering of the people has to be addressed urgently. The national economy is in peril, with few weeks of reserves and facing imminent default on its International Sovereign Bonds (ISBs).

The demonstrations have now morphed into powerful demands by the people requiring that the President resign from office, and more recently that all 225 Members of Parliament resign. These demands cannot, however, be met in a vacuum. They can only occur within the bounds of the legal system of Sri Lanka, principally, within the Constitution of Sri Lanka.

Fixing the economy

Resolving the economic crisis is the most crucial and urgent need to address the demands of the people. The consensus among the specialists can only be resolved urgently by: ( a) immediate negotiations for a rescue package from the IMF to stabilise fiscal and monetary conditions; ( b) negotiating a moratorium and restructuring debt with creditors, mostly with those holding ISBs; and ( c) obtaining targeted bridge loans for meeting the urgent needs of the people.

The constitutional constraints

The demands of the people to remove the President or that he voluntarily resigns can only be accomplished within the limits of the Constitution.

There are six ways in which the office of the President can be vacated.

Under Article 38, the office of the President will be vacant “( a) upon his death; (b) if he resigns his office by writing under his hand to the Speaker; ( c) if he ceases to be a citizen of Sri Lanka; (d) if the person elected as President fails to assume office, within one month from the date of commencement of his term of office; (e) if he is removed from office…..; or (f) if the Supreme Court in the exercise of its powers under Article 130( a) determines that his election was void…….”.

Resignation from office

Of the above, two, Article 38 ( b) voluntary resignation, or Article 38(e) removal from office address the demands of the people.

The President has stated presently that he will not resign, as it is his right under the Constitution. Ultimately, if the President does resign, there are two immediate consequences that the Constitution contemplates and addresses.

The first, is where the President resigns and Parliament has not been dissolved. In these circumstances, under Article 40(1)(a) and (b), Parliament is obligated “to elect, as President one of its members who is qualified to be elected to the office of President.” The Member so elected will serve out the rest of the term of the President. The election has to be held in no event later than one month from the date of the occurrence of the vacancy. The vote shall be by secret ballot and “by an absolute majority” of the votes cast.

Second, is where the President has vacated office and Parliament has also been dissolved. Here the President is elected “by the new Parliament within one month of the first meeting” (Article 40 (1) proviso). Until as such time as the new Parliament is convened and the election of the Interim President is held, the Prime Minister will act as the President, and the Prime Minister will appoint another member from the Cabinet to act as the Prime Minister. The President, so elected, will serve out the remaining period of office of the former President. This second method based on a prior dissolution of Parliament and the President resigning thereafter, cannot happen just yet, because the President cannot dissolve Parliament until two and half years have elapsed. That period will only be completed in September 2022. Any earlier dissolution of Parliament requires a Parliamentary Resolution requesting the President to dissolve Parliament. (Paragraph 12 of the 20th Amendment).

In both cases, during the time period from the date on which the President’s office falls vacant and the date the new President is elected by Parliament, the Prime Minister, will act as President (Article 40(1)(c) of the Constitution). Also, the Member elected by Parliament to be Interim President must be qualified to hold such office under the Constitution.

Removal of a president

There are two methods by which the Constitution contemplates the removal of the President. First, under Article 38(1)(e) where Parliament removes him from office under the prescribed terms of Article 38(2) ( a). Accordingly, the President can be removed from office for “(i) intentional violation of the Constitution (ii) treason (iii) bribery ( iv) misconduct or corruption involving the abuse of the powers of his office or ( v) any offence under any law, involving moral turpitude, and setting out full particulars of the allegations made and seeking an inquiry thereon by the Supreme Court”.

The first procedure is, any Member of Parliament by Notice of Resolution to the Speaker allege that the President had committed one or more of the above referred acts, provided that the Notice is signed by two thirds of all 225 members of the Parliament. If the Resolution is then passed by two thirds of Parliament, the President is removed from Office (Article 38(2)(b)(i)).

The second procedure for removal is that if the Notice of Resolution is signed by not less than 50 per cent of Members of Parliament (i.e. by 113 members or more), it receives less than the required two thirds majority; and yet, the Speaker is satisfied that the allegations merit the Supreme Court’s inquiry, he will refer the allegations in the Resolution to the Supreme Court for its determination. At the Supreme Court’s hearing, the President is given the opportunity to defend himself. If the Supreme Court, determines that the President is guilty as alleged in the Resolution, its decision is referred back to the Parliament whereupon if a Resolution based on the Supreme Court’s verdict is passed by two thirds of the Parliament, the President is removed from office (Articles 38(b)(ii), 38(c), 38(d) and 38(e)).

Hence the procedures to remove a President are extremely tedious, time consuming and heavily evidence laden.

An option

Therefore, meeting the people’s demands to remove the President from office, or his resignation, is extremely difficult to achieve.

If the President will not resign, the next best option is to examine whether his executive powers can be limited by Parliament. In other words, to make the office of the President, a nominal one. To achieve that end requires certain pre-requisites. First, there has to be subtlety of interpretation of the relevant provisions of the Constitution. Second, there has to be, at least, a simple majority in Parliament. Third, there must be sacrifice, compromise and consideration by all major political parties including the present governing party. Fourth, there have to be self-limiting measures taken by Parliament.

At the core of the proposal is for Parliament under its legislative power ( Article 75 of the Constitution) to pass a Bill, by a simple majority, requiring responsibility by Parliament for key executive powers assumed now by the President. The justification for such a proposal principally rests on Article 42 of the Constitution which reads: “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution.”

Based on that responsibility, the subtlety of interpretation lies in distinguishing between “Executive Procedure” and “Executive Acts” of the powers of the President under the Constitution. For most part, the Executive Acts of the President are clear in the Constitution. There is paucity, however, in it on Executive Procedure. Assumption by Parliament of Executive Procedure is at the heart of the proposal. An example of how this might work can be demonstrated by reference to Article 43( 3) of the Constitution that states: “The President shall appoint as Prime Minister, the Member of Parliament who in his opinion is most likely to command the confidence of Parliament.” Under the proposal, the President retains, at all times the “Executive Act” of appointment. With the proposed Bill, the President will be required to obtain, Parliament’s prior advice and consent before formulating his “opinion” as to which Member commands the confidence of Parliament to be appointed as Prime Minister (“Executive Procedure”). The President will then have fulfilled his responsibility to Parliament under Section 42, and would have still retained the integrity of Article 43( 3) of the Constitution. Similarly, Parliament can also determine which other Executive Procedures can be assumed by Parliament and include them in the Bill.

Even so, the proposal is vulnerable to attack as an implicit amendment to the Constitution and surely a Supreme Court decision maybe sought. In a democracy that would be welcome.

Because of limitation of space, and the urgency of the moment, the elaboration of the proposal here is not possible. If this option is accepted by consensus of all parties, there are possibilities for achieving the most urgent political demands of the people. The people, unlike no other time, have also demanded national unity in Government. By requiring advise and consent of Parliament, the President can also be required in volatile situations, such as now, to create a National Government under Article 47( 3) of the Constitution or alternatively, an entity that maybe called a Parliamentary Governing Council (PGC), limited to 4 or 5 leaders drawn from the parties having the highest representation in Parliament with the leader of the party having the highest single representation in Parliament being the Chairman ( equivalent to Prime Minister) of the PGC. The PGC could form a Cabinet of Ministers of not more than 10- 15 from the present Members of Parliament, drawn from any party, ensuring diversity of gender and minority representation, the portfolios being determined by

Parliament to be the most critical to respond to the current economic crisis. The PGC members and Ministers should be qualified to hold office, experienced, and should not have been charged, or facing charges at any time or otherwise have been previously prosecuted in any Court of Law for money laundering bribery and corruption or any criminal acts. An oath must be taken to that effect. Those conditions being met, they can be appointed by the President under Article 45( 1) of the Constitution. This way the supremacy of Parliament that is recognised under the Constitution is preserved. All that required is a simple majority in Parliament.

If this narrow window is utilised diligently by Parliament, there can be a glimmer of hope for a new and fresh beginning, clean government, the restoration of democracy, of civility and unity in Sri Lanka, in the face of these dark and daunting times confronting the nation.

The people, unlike no other time, have also demanded national unity in Government. By requiring advise and consent of Parliament, the President can also be required in volatile situations, such as now, to create a National Government under Article 47(3) of the Constitution or alternatively, an entity that maybe called a Parliamentary Governing Council (PGC), limited to 4 or 5 leaders drawn from the parties having the highest representation in Parliament with the leader of the party having the highest single representation in Parliament being the Chairman (equivalent to Prime Minister) of the PGC.