In appointing a Prime Minister, President cannot exercise his powers arbitrarily – By Sunil de Silva, President’s Counsel

It would be useful to examine how and from what source the President derives the power to appoint a Prime Minister.
Unlike a monarch or dictator, the President derives his authority solely on account of the ultimate sovereign, the People of Sri Lanka, having chosen by exercise of their vote to elect and duly authorise the President to exercise the powers designated by them, and on their behalf. The people do not say ‘do whatever you have to do, for as long as you like’, they stipulate, by the Constitution, what power the elected person may exercise and for what period he or she enjoys that trust.

Regarding the power to appoint a Prime Minister, the President may genuinely be of the view that a corporate businessman who has taken over a crumbling business and, with his dynamic enterprise, turned it into a gigantic corporation, as being the best person to be the Prime Minister, but the people by their Constitution have not given the President that discretion.
Article 42(4) of the Constitution provides that “The President shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament.”

The words are mandatory, ‘The President shall appoint’ a Member of Parliament who in the opinion of the President ‘is most likely to command the confidence of Parliament’ regardless of the President’s opinion that the person who has the confidence of Parliament is not fit to hold the office of Prime Minister.

If the Constitution wished to provide otherwise, words such as ‘in his opinion the most suitable person…’ would have been used to qualify the Member to be appointed.
Clearly, the opinion of the President with regard to suitability of the person is not the governing factor.

When the President forms the opinion that a particular Member of Parliament ‘is most likely to command the confidence of Parliament’, the President cannot lawfully exercise the assessment arbitrarily or capriciously.

It is obvious that the President could arrive at that decision from the numerical supremacy of the Members of Parliament who have been elected from the political party that the Member leads. If no single political party enjoys a majority in the Parliament, a Member of the political party which has won the largest number of seats could provide evidence that one or more political parties would support that Member with the numbers of Members from their party or parties that can provide to reach the ‘magic number’ of 113 Members of Parliament.

This ‘evidence’ may be conjecture based on verbal assurances given to the MP wishing to be considered for the post of Prime Minister.
Let’s assume that the President honestly forms the requisite opinion on the basis of the ‘evidence’ provided by the person and appoints that person as the Prime Minister, who then proceeds to suggest the names of the Members of Parliament who should constitute the Cabinet of Ministers and Deputy Ministers.

If subsequent to making the appointment the President realises, either on further reflection or ‘counter evidence’ that he had formed an incorrect opinion when he made the appointment, what are the options available to the President under the Constitution?
Firstly, can he remove the person he appointed in error or mistaken assessment of the likelihood of the appointee having the ‘confidence’ of Parliament?

There is no power given under the Constitution to ‘remove’ the Prime Minster on the President realising that he had made a mistake. There would be even less authority for the President to arrive at a conclusion that his appointee was a ‘corrupt’ person who should not have been appointed to that position.
The situations in which the person ‘lawfully’ appointed Prime Minister, would cease to hold office, appears at Article 46(2) of the Constitution.

That provision reads, “The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he resigns his office by writing under his hand addressed to the President, or ceases to be a Member of Parliament.
It may be useful to observe that the words “Notwithstanding the death, removal of office or the resignation of the Prime Minister ….” found in Articles 47 and 48, appear to have been considered in some articles in recent times, without adequate reference to other provisions of the Constitution.

The words contain reference to the various methods by which the Prime Minister can lose Office, and ‘death’ ‘removal of office’ though not specifically used in Article 46(2), should be interpreted as being contained in the words ‘ceases to be a Member of Parliament’. Since Article 66 provides that “The seat of a Member shall become vacant:-
upon his death, or (d) if he becomes subject to any disqualification in Article 89 or 91″ among the nine causes for a member losing his seat.
In this context what would the President have to do to correct his ‘mistaken opinion’?

If the mistake was in making the assessment that the appointee had the support of at least 113 Members of Parliament, it would be unreasonable to assume that the Constitution provided that the President could ask the Prime Minister to show him the support of at least 113 members. The situation and the error are not beyond correction. Parliament, on the other hand, has a solution, namely a ‘no-confidence motion’, which if carried by 113 members supporting the motion, the beleaguered Prime Minister mathematically cannot claim to enjoy the confidence of Parliament.

If the mistake was in appointing a person who was not qualified to be a Member of Parliament, it would be open for Parliament to take corrective action, by declaring the seat vacant and removing the Member from Parliament and automatically removing the person from the office of Prime Minister. However, honestly motivated, the President cannot arrogate to himself, powers that the ultimate sovereign, the People of Sri Lanka have vested in the Parliament.

(The writer is a former Attorney General of Sri Lanka and a Barrister in New South Wales.)