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Sri Lanka: Lawyers for Democracy (LfD) urges President to respect the Constitution & revoke prorogation of Parliament

29 October

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Lawyers for Democracy (LfD)

Media Release

28 October 2018

Lawyers for Democracy (LfD) urges President to respect the Constitution & revoke prorogation of Parliament

On 26 October 2018, President Maithripala Sirisena purported to remove the existing Prime Minister Ranil Wickremasinghe and purported to appoint Mahinda Rajapakse MP as the new Prime Minister. Having examined the legal position, LfD concludes that this move is clearly unconstitutional and undemocratic for the following reasons:

a) The 19th Amendment has restricted the President’s powers in relation to Parliament as well as Cabinet, including removal and appointment of a Prime Minister. Power to remove the Prime Minister, previously vested in the President, was entirely removed by the 19th Amendment, which was introduced to ensure that arbitrary powers exercised by prior executive Presidents could not undermine basic democratic governance. This change was intentional.
 
b) The concept of a Unity Government, set out for first time in the 19th Amendment, is not linked to the Appointment or Removal of a Prime Minister. There is no direct consequence of ending a Unity Government for the dissolution of Cabinet or removal of the Prime Minister.
 
c) Appointment of a Prime Minister under Article 42(4) of the Constitution can arise only when there is a vacancy by virtue of a fresh election, resignation and on the removal consequent to a no-confidence motion. Thus the appointment of Mr Mahinda Rajapakse as PM is void, given the absence of any of the three above conditions to date.
 
d) Interpretation Ordinance provision that the appointing authority can remove the appointed has no application here as there is a specific procedure for removal of a Prime Minister specified under Article 46 of the Constitution.
 
e) Any further actions by the President to appoint Ministers without the advice of a constitutionally appointed Prime Minister also lack legality and are void.

LfD believes that the current constitutional crisis over the PM post must be democratically and peacefully resolved before a court of law or on the Floor of the Parliament through demonstrating majority support for either Prime Minister Wickremasinghe or Mr Rajapakse. However, the President’s actions to prorogue Parliament until 16th November 2018 deprive the Parliament from taking up and resolving this matter. The context in which the President has acted is contrary to very essence of the 19th Amendment and basic fundamental values of the constitution. The action of the President, a reminiscent of a constitutional coup, is also contrary to the mandate given to the President at the 2015 January Election.

The President should immediately revoke the prorogation or summon parliament so as to de-escalate the constitutional crisis created. To fail to do so will be in breach of his responsibilities under the 19th Amendment to uphold the Constitution of In Lanka.

Conveners, On behalf of Lawyers for Democracy (Lai Wuenayaka, K.S. Ratnavale, JC Weliamuna, Sunil Jayarathna, Lakshan Dias, Sudath Nethisnghe, Harishka Nadeeshan, Prabodha Rathnyaka)