President is powerless to remove the Prime Minister

Some commentators have persistently advanced the proposition that, notwithstanding the 19th Amendment to the Constitution, 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 19th 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. 

Tenure of Prime Minister’s office pre-19th Amendment

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

a)is removed by the President;

b)resigns his office; or

c)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 occurred, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015.

President surrendered his power to dismiss the PM

The 19th Amendment somewhat drastically curtailed the President’s powers and reconfigured the power relationship between the President, on the one hand, and Parliament and Prime Minister on the other. President Sirisena himself adumbrated the overall objective of the 19th Amendment in the course of a speech he delivered on 23 April2015, when he said: 

“In order to build a democratic and civilised society, it is necessary to prevent the emergence of dictatorship and taking control of State power, State assets, the Judiciary, Parliament and all of this to one’s own control that comes from the Executive Presidential system.

“This should be immediately changed. I have worked towards this in the past three months. I am not aware of any leader in the world who had obtained an office with all these powers but has been as flexible in trying to get rid of those powers that had been bestowed on such a leader.

“The Attorney General informed the Supreme Court that in keeping with my advice these powers should be removed. My Constitutional Adviser also informed the Supreme Court that these powers should be removed. We took a political decision on this. The Supreme Court has given a decision on this.” http://www.pmdnews.lk/speech-by-h-e-maithripala-sirisena-the-statement-by-president-maithripala-sirisena-on-april-23/

By the 19th Amendment, the President surrendered not only the power he possessed to summarily dissolve Parliament at any time but also his power to dismiss the Prime Minister. The 19th Amendment was seen as the first step in the process of enacting a new constitution to give effect to the mandate given by the people, an important element of which is the curtailment if not the abolition of the executive presidency. It was designed to insulate both Parliament and Prime Minister from the vagaries of Presidential whim. This commitment that has been built into the Nineteenth Amendment can neither be reversed nor nullified by an expansive reading of the President’s powers. 

In the Nineteenth Amendment, the provision relating to Prime Minister’s tenure is located in Article 46(2). Article 46(2) reflects Parliament’s intention to withdraw from the President the power to remove the Prime Minister. It reproduces the corresponding provision from the principal enactment but without clause (a). Accordingly, the Prime Minister shall hold office unless 

a)he resigns from office; or

b)ceases to be a Member of Parliament.

It is noteworthy that there is no inconsistency between the English and Sinhala texts of this article. The President’s power to remove the Prime Minister is absent from both texts. 

That the removal of clause (a) from Article 46(2) was intentional will become clear upon a reading of Article 47(1), which provides for the continuation in office of the Prime Minister and the Cabinet of Ministers following the dissolution of Parliament. As both the Prime Minister and the rest of the Cabinet of Ministers have to be Members of Parliament, but for this provision, the dissolution of Parliament would cause their offices to fall vacant. Therefore, it is provided that, notwithstanding the dissolution of Parliament, the Prime Minister and the Cabinet of Ministers functioning immediately prior to the dissolution of Parliament shall continue to function until the conclusion of the general election.

The important point to note is that it refers the reader back to Article 46(2)(a). That is because the question whether the Prime Minister’s office has fallen vacant is one that will have to be determined by reference to Article 46(2). In so far as the Prime Minister is concerned, the only other way he could cease to hold office is by resigning from his office. 

The phrase “removal from office” which appears in Articles 47(2) and (3) are now redundant because the power to remove the Prime Minister has been withdrawn from the President.

The purpose of Article 47(2) is to enable the President to appoint a Prime Minister in the event the latter’s office falls vacant during the period between the dissolution of Parliament and the conclusion of the General Election (which we may for convenience refer to as the “the intervening period”). 

Article 47(2) does not empower the President to create a vacancy during this period but only to fill one. If the office falls vacant during the intervening period, the President may appoint one of the Ministers as Prime Minister. If the vacancy occurs before Parliament is dissolved, then the President will have to appoint a person who commands the confidence of Parliament. 

When Parliament stands dissolved, it would be absurd to require him to appoint a person who will command the confidence of a non-existent Parliament. Therefore, it is not a requirement for appointment under this provision.

The logic of this interpretation should apply with equal force to Article 48(1).Whereas in the English text of this Article it is provided that the Prime Minister may cease to hold office “by death, resignation or otherwise”, the Sinhala text states that the Prime Minister may cease to hold office upon “removal from office, resignation or otherwise.” Article 48(1) does no more than declare the effect that the Prime Minister ceasing to hold office would have on the continuity of the Cabinet of Ministers. 

It cannot be read in isolation from the aforementioned provisions. It cannot, and does not, confer on the President the power to dismiss the Prime Minister. It is a consequential provision in the same way Articles 47(2) and (3) are. It is not self-explanatory and its meaning cannot be determined except by cross referencing it with Article 46(2). How else does one ascribe a meaning to the word “otherwise” appearing in Article 48(1)?

Should the Sinhala text prevail?

There is a contradiction no doubt between the Sinhala and the English texts. It has been contended that effect should be given to the words in the Sinhala text. Should the Sinhala text of Article 48(1) prevail over the English text of the corresponding article?

There is no sanctity attached to the Sinhala text of the enactment. According to the Nineteenth Amendment, in the event of any inconsistency between the Sinhala and Tamil texts, the Sinhala text shall prevail. It does not say that the Sinhala text shall prevail where it is inconsistent with the English text.

Besides, not every contradiction will give rise to an inconsistency. The inconsistency in the language of the text is the result of a mistake made by the draftsman. When properly interpreted, the apparent inconsistency between the Sinhala and English texts will disappear.

Draftsmen of legislation do make mistakes. The Supreme Court’s decision in Re Transport Board Statute of the North-Eastern Provincial Council SC. No 7/89 (Spl) (PPA/2/PC/19) dated 22 February 1990 provides an illustration of the approach that ought to be taken when interpreting legislation with drafting errors. 

List I of the Ninth Schedule to the 13th Amendment enumerates the subjects that come within the competence of a Provincial Council. Under item 8 of that List, a Provincial Council is empowered to regulate the provision of “inter-provincial road transport services”. 

The Provincial Council for the Northern and Eastern Provinces passed a statute for the provision of road transport services within their provinces and presented it to the Governor for his assent. He refused his assent on the ground that the Council was not competent to make that statute. The Council passed it again and the Governor once again withheld his assent. The President then referred the statute to the Supreme Court for a determination as to its constitutional validity. 

The Supreme Court had to answer the question whether item 8 prevented the Provincial Council from passing a statute for the provision of intra-provincial road transport services.

It transpired in the course of the hearings that the English text of the 13th Amendment Bill had been used in the course of its passage through Parliament. The English text of the Bill as gazetted – and as actually used in Parliament-contained the words ‘intra-provincial road transport services’. Both the Sinhala text of the Bill as well as the Bill containing the Speaker’s endorsement contained the words ‘inter-provincial road transport services’. 

It was argued on behalf of the Council that the word ‘inter’ be treated as a printing error. Mark Fernando J held that the use of the word ‘inter’ in the Sinhala text cannot be treated as a printing error because the Bill as certified was only in Sinhala and the text in the Sinhala language shall prevail. 

Nevertheless, Fernando J proceeded to hold that the use of the word ‘inter’ was an obvious mistake and that it must be read as if it used the word ‘intra’, thus permitting the Council to pass a statute for the provision of ‘intra-provincial’ road transport services. 

Mark Fernando J did not regard the Sinhala text of the Third Amendment as determinative of the question because it contained an obvious mistake. In other words, the rule prescribed by the statute that its Sinhala text should prevail in the event of an inconsistency did not foreclose an interpretation that was contrary to the express language used in the Sinhala text.

Further example of erroneous drafting

Another egregious drafting error that went unnoticed was contained in Article 48(2) of the principal enactment, which corresponds to the present Article 47(2). Although not directly relevant to the issue under discussion, it is mentioned here to illustrate the dangers of reading a text literally.

Article 48(2) of the principal enactment provided as follows:

“48 (2) Notwithstanding the death, removal from office or resignation of the Prime Minister, during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall continue to function with the other Ministers of the Cabinet as its members until the conclusion of the General Election. The President may appoint one such Minister to exercise, perform and discharge, or may himself exercise, perform and discharge the powers, duties and functions of the Prime Minister. If there is no such other Minister the President shall himself exercise perform and discharge the powers, duties and functions of the Cabinet of Ministers until the conclusion of the General Election.”

The words in italics, if read literally, would give rise to the absurd conclusion that the President could not only step into the shoes of the Prime Minister when the latter’s office fell vacant, but also into the shoes of the entire Cabinet of Ministers! Thankfully, the words in italics have been removed by the 19th Amendment. 

Conclusion

The changes brought about by the 19th 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.