Centre for Policy Alternatives on 30 November, 2018

Centre for Policy Alternatives V Mangala Samaraweera and Two Others [ SC FR 34/2018] & Bhavani Fonseka and Four Others [ SC FR 33/ 2018]

23rd January 2018, Colombo, Sri Lanka: Two Fundamental Rights Petitions were filed challenging the validity of Excise Notification No 4/2018 of the Gazette Extraordinary No. 2054-42 issued by the Minister in charge of the Ministry of Finance and Media on 18th January 2018. The effect of Excise Notification No 4/2018 is to reintroduce:

  • The prohibition on women above the age of 18 to manufacture, collect, bottle, sell or transport liquor.
  • The prohibition on women above the age of 18 from being employed for manufacturing, collecting, bottling, sale or transport of liquor.
  • The prohibition on “giving” liquor to “a woman within the premises of a tavern”.

The two Petitions were filed on the basis of the violation of specific rights guaranteed under the Fundamental Rights Chapter in the Constitution of Sri Lanka. The position of both Petitions is that regardless of whether a woman actually engages in these activities, her constitutional right to make that choice for herself should be respected to the same extent as that of a man.

The first Petition was filed by five women on their own behalf and in the public interest. They are Bhavani Fonseka, Sumika Perera, Anusha Coomaraswamy, Shreen Saroor and Minoli de Zoysa. The five petitioners assert that Excise Notification No 4/2018 is a violation of their rights guaranteed under Article 10 [freedom of thought], Article 12(1) [equal protection of the law], Article 12(2) [nondiscrimination] and Article 14(1)(g) [freedom to engage in a lawful occupation, profession].

View the first petition in full here.

The second petition was filed in the public interest by the Centre for Policy Alternatives (CPA) and its Executive Director, Dr P. Saravanamuttu. The petition alleges that the prohibition violates the rights guaranteed under Article 10, 12(1) and 12(2) of women above the age of 18 who constitute a significant segment of the People of Sri Lanka.

View the second petition in full here.

Viran Corea with Sarita de Fonseka, Luwie Ganeshathasan , Khyati Wikramanayake and Inshira Faliq appeared for the petitioners.

Update: Leave to proceed was granted in both the cases and is listed for support on 5th of February 2019.  

Centre for Policy Alternatives on 15 November, 2018

Constitutional Crisis: Questions and Answers II

The Centre for Policy Alternatives has prepared this short guide to answer some further questions that have arisen in the public debate about the constitutional crisis in Sri Lanka. See the previous set of Questions and Answers here.

  1. What was the Supreme Court’s decision on November 13th?

When the President issued a gazette on November 9th containing a Proclamation dissolving Parliament and calling for a General Election, a number of parties made fundamental rights petitions to the Supreme Court challenging the constitutionality of that decision.

On November 13, the Supreme Court issued something called a Stay Order on that gazette. The Stay Order suspends the effect of the gazette until December 7th. The Supreme Court also issued an Interim Order to the Election Commission to prevent it from making any election preparations, also until December 7.

Finally, the Supreme Court granted leave to proceed to all the petitioners. This means that they can now make their arguments before the Court.

 

  1. What will happen next with the case?

The petitioners will now get to argue their case before the Supreme Court on December 4th, 5th and 6th. The respondents in the case, which include the Attorney General appearing for the President and the Election Commission, will also get to make submissions. After this, the Court will make its Determination on whether or not the President’s gazette is constitutional or not. It must do so within two months, however, since the last date for argument is followed immediately by the expiry of the Stay Order on the gazette and the Interim Order to the Election Commission (December 6th and 7th), it is likely the Court’s Determination will come immediately thereafter.

If the Court decides the President’s gazette notification is unconstitutional, then Parliament remains undissolved and the election cannot happen. If the Court decides it is constitutional, then Parliament is dissolved and the election can go ahead. A new date for the election will have to be fixed given its suspension due to the case.

 

  1. Which gazettes issued by the President are now operational?
  • Extraordinary Gazette No. 2095/50 issued on November 4th – reconvening Parliament on November 14 (cancelling the previous Extraordinary Gazette No. 2094/45 issued on October 27th which prorogued Parliament until November 16th)
  • Extraordinary Gazette No. 2096/17 issued on November 5th – bringing the Police from under the Ministry of Law & Order to under the Ministry of Defence and thus the President’s purview; and assigning 42 departments, statutory institutions and State corporations to the Finance Ministry
  • Extraordinary Gazette No. 2094/43 issued on October 26th – removing Ranil Wickremesinghe from the office of the Prime Minister
  • Extraordinary Gazette No. 2094/44 issued on October 26th – appointing Mahinda Rajapaksa to the office of the Prime Minister

 

  1. What are the Standing Orders of Parliament?

The Standing Orders of Parliament prescribe the rules for Parliament and its MPs to function in an orderly manner. Article 74 of the Constitution empowers Parliament to adopt Standing Orders to regulate itself. They contain rules for matters such as the election of various positions in Parliament, voting procedures, rules of debate, guidelines for the business of the various Parliamentary committees and procedures for impeaching or removing various officials.

The Standing Orders are adopted at the start of each newly elected Parliament or whenever the Committee on Standing Orders prepares a new revision. The current Standing Orders were adopted by Parliament and came into effect on April 15th, 2018. The Speaker, through the assistance of the Secretary-General of Parliament, gives assistance to MPs on the correct interpretation and application of the Standing Orders.

 

  1. What does a suspension of Standing Orders in Parliament mean?

Standing Order No. 135 provides that the Standing Orders can be suspended anytime through a motion made by any MP and a majority of MPs voting for it. Standing Orders are suspended to enable any special business to be considered.

Unless proposed by a Cabinet Minister, a motion to suspend the Standing Orders must be decided by a division. A division is a way for a vote to be taken. Under Standing Order No. 47(2) a division can be by any of the following methods chosen by the Speaker:

  • counting MPs rising in their places for or against a motion;
  • using the electronic vote recorder;
  • the Secretary General of Parliament asking each MP separately how they wish to vote and recording those votes.

 

  1. What is a no confidence motion?

A no confidence motion is a motion in Parliament against a Government. If the no confidence motion passes by a majority of MPs voting for it, then that means the Government no longer has the support or “confidence” of the Parliament.

Our constitution does not explicitly provide for a no confidence motion against the Prime Minister, but it does against the Government as a whole under Article 48(2) of the Constitution. Any MP can bring a no-confidence motion against the Cabinet of Ministers.

If a no confidence motion is successful, the Cabinet of Ministers is dissolved, and unless the President has dissolved Parliament as well, he may appoint a new Prime Minister and Cabinet of Ministers under Article 48(2) of the Constitution. This means the President can appoint a new Prime Minister who is in his opinion most likely to command the confidence of Parliament under Article 42(4).

 

  1. How is a no confidence motion voted on?

Neither the Constitution nor the Standing Orders provide instructions on how a no confidence motion can be voted on. However, a no confidence motion would generally be considered a special business of Parliament, therefore first the Standing Orders would need to be suspended (see question 5 above) and then the no confidence motion made.

Article 72(1) of the Constitution provides a general instruction on voting saying that any question proposed in Parliament can be decided by a majority of all MPs present and voting. How the vote is conducted is up to the Speaker under Standing Order No. 47. It may be taken by voice; or by division if any MP requests it, which means through a count of MPs rising for or against the motion; through electronic voting; or by asking each MP individually (see question 5 above).

 

  1. What happened in Parliament on November 14?
  • Parliament convened at 10.00 a.m. on November 14th in terms of the Gazette Extraordinary No 2095/50 issued by the President on November 4th
  • As reported by multiple media reports and as per the statement released by the Speaker’s office, TNA MP Hon. M.A Sumanthiran moved for a motion to suspend Standing Orders.
  • Thereafter, the Standing Orders were suspended after a majority of MPs voted in favour of the suspension.
  • Then JVP MP Hon. Anura Kumara Dissanayake moved a no confidence motion against the Government. This was then seconded by JVP MP Hon. Vijitha Herath.
  • It was further proposed that the no-confidence motion should be taken up on the day itself (14th November 2018).
  • After the Speaker of Parliament Karu Jayasuriya permitted the vote of no confidence to be debated, Parliament erupted in to chaos prompting the Speaker to take an oral vote (as provided for by Standing Order No. 47)
  • Accordingly, after a majority of MPs voted in favour of the no confidence motion it was announced by the Speaker that the no confidence motion was passed with a majority.
  • Lakshman Kiriella then proposed for the Parliament to be adjourned (as stated in Standing Order No 15) until 10.00 a.m. on November 15th with the approval of the Parliament.

 

  1. What is the effect of what happened in Parliament today?

Since a no confidence motion was carried out successfully, the Cabinet of Ministers headed by Prime Minister Mahinda Rajapaksa can now be considered to be dissolved under Article 48(2) of the Constitution.

The Speaker announced that he will forward the no confidence motion, Parliament’s decision on the motion as well a copy of the letter signed by 122 MPs to the effect that the Prime Minister and the Cabinet of Ministers appointed by the President recently are unconstitutional, to the President to “take appropriate action according to the Constitution”.

The President is able therefore appoint a Prime Minister and Cabinet of Ministers under Article 48(2) of the Constitution who is in his opinion most likely to command the confidence of Parliament under Article 42(4).

The President, however, has responded to the Speaker on November 14 itself stating that the Speaker has ignored the Constitution, the Standing Orders and Parliamentary conventions with his actions on the day. The President cites that there is no Parliamentary convention requiring a Prime Minister or a Government to show a majority. He also rejects the letter signed by 122 MPs due to it not being appropriately certified by Parliament.

 

Download this as a PDF here.

 

Centre for Policy Alternatives on 13 November, 2018

CPA Statement on the Supreme Court’s Interim Order Staying the Purported Dissolution of Parliament

13 November 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) warmly welcomes the Supreme Court’s decision today to stay the proclamation dissolving Parliament made by the President on 9 November 2018, until 7 December. The Court also granted leave to proceed on a number of fundamental rights applications including those by CPA and its Executive Director, Dr Paikiasothy Saravanamuttu. CPA is the only civil society organisation to petition the Court against the President’s purported dissolution of Parliament, which we have clearly maintained is illegal and unconstitutional from the beginning. We look forward to pursuing this argument before the Court at the full hearing set for early December.

In granting interim relief in the form of staying the impugned dissolution, the Supreme Court bench comprising Chief Justice Nalin Perera, Justice Priyantha Jayawardana, and Justice Prasanna Jayawardana, have acted to uphold constitutional due process in what was a rapidly deteriorating situation. It is a welcome intervention that will strengthen the prospects of a resolution to Sri Lanka’s current constitutional crisis. We commend the Supreme Court for strongly signalling its commitment to judicial independence, democracy, fundamental rights, the rule of law, and the Constitution of Sri Lanka.

Download this release as a PDF in English and Sinhala.

See the interim order granted in the CPA case here.

Executive Director Dr. Paikiasothy Saravanamuttu speaks outside the Supreme Court soon after the decision is given.

Centre for Policy Alternatives on 12 November, 2018

CPA Statement on the Presidential Proclamation Dissolving Parliament and Calling for Elections

November 12th 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is alarmed by the continuous and gratuitous undermining of the Constitution of Sri Lanka by President Maithripala Sirisena which has resulted in an unprecedented constitutional crisis since October 26. The most recent development occurred on November 9 when President Sirisena issued a Proclamation (Gazette Extraordinary 2096/70) purportedly dissolving the Eighth Parliament and fixing for a General Election on January 5, 2019.

CPA categorically opposes this move as it is unconstitutional and ultra vires and accordingly filed papers today, November 12, 2018, on behalf of itself and its Executive Director, Dr. Paikiasothy Saravanamuttu, seeking the annulment of this Proclamation.

CPA’s position is firm. Article 70(1) of the Constitution of Sri Lanka read with Articles 33(2)(c) make it crystal clear that the President only has the power to dissolve Parliament once four years and six months have elapsed since the first sitting of the current Parliament, or if two thirds of Members of Parliament pass a resolution requesting dissolution. Since neither of these two conditions have been met, the President’s Proclamation is invalid.

The Nineteenth Amendment to the Constitution was enacted in 2015 on the basis of key promises made by President Sirisena and his coalition government to curb the powers of the Executive. Article 70 was one such provision and removed the President’s power to unilaterally dissolve Parliament. The Nineteenth Amendment was enacted to restore and introduce checks, balances and safeguards to prevent one arm of government from being able to halt or stifle the functioning of another. This is a fundamental feature of our democracy and President Sirisena’s actions represent a flagrant attempt by the Executive to suppress the functioning of Parliament. The legal position, together with the political impetus behind the Nineteenth Amendment, leaves no room for doubt that his present actions are legally, politically and morally invalid.

The unilateral dissolution of Parliament and calling for elections in an unconstitutional manner only exacerbates the uncertainty of recent weeks when a myriad of issues, including the legality of the new Government President Sirisena has appointed, remain unresolved. In the immediate context, this has unnecessarily caused great uncertainty to Sri Lankans and put them at risk of potential political violence amid escalating turmoil. In broader context, it has been a reprehensible violation of the very principles of democratic accountability President Sirisena campaigned for and was elected on. On both these accounts, CPA calls on all Sri Lankans to stand firm against these blatant and dangerous abuses of power, and to demand and insist on their democratic rights and upholding of the Constitution of Sri Lanka.

Download the petition for this case here.

Download this release as a PDF in English, Sinhala and Tamil.

See CPA’s initial statement on the constitutional crisis here.

Centre for Policy Alternatives on 31 October, 2018

Constitutional Crisis: Questions and Answers

 The Centre for Policy Alternatives has prepared this short guide to answer some questions that have arisen in the public debate about the constitutional crisis in Sri Lanka.

  1. What is the prorogation of Parliament?

To prorogue Parliament means to prolong it, or to put it off for a later day. It is basically a temporary recess of Parliament. Parliament ordinarily functions over a series of sitting days which make up what is called a session; when Parliament is prorogued, a session comes to an end. A prorogation is different to an adjournment, which is a break between two sitting days. Parliament has been prorogued on several occasions in the past, most recently between 12 April and 8 May this year.

  1. What happens when Parliament is prorogued?

The effect of a prorogation is to suspend, but not end, all existing parliamentary business and all proceedings (except for impeachments, see question 11 below). During a prorogation the Speaker continues to function and MPs continue to be MPs even though there are no meetings of Parliament.

During the period Parliament is prorogued, all the Committees for Special Purposes – for example, the Committee on Public Enterprise (COPE) and the Committee on Public Finance (CPF) – cease to function and must be reconstituted at the next session (as per Standing Orders of Parliament No. 114). But the Select Committees, the Sectoral Oversight Committees, and the Committee on High Posts continue to function during a prorogation (as per Standing Orders of Parliament Nos. 109, 111(2) and 124(5)).

  1. What happens when a prorogation ends?

Parliament reconvenes under a new session. All pending parliamentary business and all proceedings can recommence from the stage they were at once the new session begins as per Article 70(4) of the Constitution. All items of business which were in the Order Paper of Parliament will need to be re-listed if Parliament wishes to continue with them.

  1. Who has the power to prorogue Parliament?

The President has the power to prorogue Parliament under Articles 33(2)(c) and 70(1) of the Constitution. He does this by way of a Proclamation, which should also state the date for the next session of Parliament. This next session cannot be more than two months after the date the Proclamation was issued.

  1. Who has the power to end a prorogation of Parliament?

The prorogation will come to an end on the date stated in the Proclamation, when the next session commences. Under Article 70(3) of the Constitution, the President also has the power to summon Parliament on a sooner date by way of another Proclamation, but that Proclamation has to be issued at least three days before the sooner date.

There is past precedent in Sri Lanka, however, for the Speaker to step in to end a prorogation. This happened in 2003 when Parliament was prorogued by President Chandrika Kumaratunga and the Speaker Joseph Michael Perera reconvened it on the request of a majority of MPs. The Speaker then stated that when the President uses prorogation powers, it must be done in consultation with Parliament and that one arm of government (i.e. the executive) cannot suppress another (i.e. the legislature) using prorogation.

  1. What is the difference between prorogation and dissolution?

A dissolution is the permanent ending of a Parliament, while a prorogation is a temporary suspension of a Parliament. The dissolution of Parliament is the dispersal of its MPs for the purpose of a General Election. Under Article 70 of the Constitution, the President can dissolve Parliament using a Proclamation which must state the date of the General Election for MPs, and a date for the new Parliament to meet. However, the President cannot dissolve Parliament during the first four and a half years of its five year term, unless Parliament requests the President to do so by a resolution passed by a two-thirds majority.

A Parliament does not reconvene once it has been dissolved, unless in the case of an emergency as per Article 70(7). All existing parliamentary business and proceedings are terminated when it is dissolved. This is different to a prorogation where Parliament reconvenes after the prorogation period has passed and previously existing parliamentary business and proceedings can resume.

  1. When can Parliament be dissolved and what is the process for dissolution?

Under Article 70(1) of the Constitution, Parliament can be dissolved by the President four years and six months after its first sitting (that is, on 1 March 2020 for the current Parliament) or if two thirds of MPs vote on a resolution requesting the President to dissolve it. Five years passing from the date of its first sitting (that is, 1 September 2020 for the current Parliament) also operates as a dissolution of Parliament under Article 62(2).

  1. What is a no confidence motion?

A no confidence motion is a motion in Parliament against a Government. If the no confidence motion passes by a majority of MPs voting for it, then that means the Government no longer has the support, or “confidence”, of the Parliament.

Our constitution does not explicitly provide for a no confidence motion against the Prime Minister, but it does against the Government as a whole under Article 48(2) of the Constitution. Any MP can bring a no-confidence motion against the Cabinet of Ministers and a majority of all MPs present and voting is required for it to pass (as per Article 72(1)).

  1. What happens to the PM if a no confidence motion is successful?

If a no confidence motion is successful, the Cabinet of Ministers is dissolved, and unless the President has dissolved Parliament as well, he may appoint a new Prime Minister and Cabinet of Ministers under Article 48(2) of the Constitution. This means the President can appoint a new Prime Minister who is in his opinion most likely to command the confidence of Parliament under Article 42(4).

  1. What happens if no one person commands a majority in Parliament?

This possibility is not provided for in the Constitution. Practically, this will only become an issue if a successful no confidence motion is brought against a Cabinet of Ministers appointed by the President, and a new Cabinet of Ministers appointed thereafter also has a successful no confidence motion brought against it.

Under this scenario, Parliament can be dissolved if four years and six months have passed since its first meeting or if two thirds of MPs request it (see question 7 above). If this does not happen, then parties would have to figure out a coalition which commands a majority in Parliament.

  1. Is there any other way the Government can be defeated in Parliament?

Under Article 48(2) of the Constitution, the Cabinet of Ministers is also dissolved if Parliament rejects the Statement of Government Policy or the Appropriation Bill (i.e. the Budget). If this happens, the President can appoint a new Prime Minister similar to after a successful no confidence motion.

  1. What is the Vote on Accounts (Mini Budget)?

If a general election has been called and a new Parliament has not been elected as yet, or when a new government has just been sworn in and they have had no time to present a proper budget, a Vote on Account may be presented. A Vote on Account is a limited budget where Parliament only passes funds for ongoing projects and services essential to the community. The Vote on Account is approved without a vote being called for.

  1. What is an impeachment motion?

Impeachment is the process that takes place when a resolution is brought against the President by an MP to determine whether the President should be removed from office for being permanently incapable of discharging the functions of his office for mental or physical infirmity, or for being guilty of: violating the Constitution, treason, bribery, misconduct or corruption, or any offence involving “moral turpitude”.

  1. How does the impeachment process work?

Article 38(2) of the Constitution lays down the impeachment process:

  • A MP must bring a Resolution citing the grounds for impeachment to the Speaker.
  • If the Resolution is signed by two thirds of MPs, or half of MPs and the Speaker agrees the allegations merit an inquiry, then it is placed on Parliament’s order paper.
  • If two thirds of MPs vote for the Resolution, the Speaker refers it to the Supreme Court.
  • The Supreme Court then conducts an Inquiry. The President has the right to appear and be heard. After the Inquiry, the Supreme Court submits its determination to Parliament.
  • If the Supreme Court finds that the allegations in the Resolution have merit, then a further resolution supported by two thirds of MPs will remove the President from office.

Download this as a PDF here.

Centre for Policy Alternatives on 29 October, 2018

CPA Statement on the Current Constitutional Crisis

October 29th 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) condemns in the strongest possible terms the attempt by President Maithripala Sirisena to purportedly remove Prime Minister Ranil Wickremesinghe from office and appoint Mr Mahinda Rajapaksa as the Prime Minister instead. We firmly believe that these acts are unconstitutional and illegal, and wholly lacking in democratic legitimacy.

The Nineteenth Amendment to the Constitution (2015) took away the power previously held by the President to dismiss the Prime Minister. This is the effect of Articles 42(4), 46(2), and 48 of the Constitution. While the President retains the ceremonial task of appointing the Prime Minister in terms of Article 42(4), this is not a subjective decision or power of the President, and he only act under this provision subject to the confidence of Parliament in the Prime Minister. The circumstances in which the Prime Minister ceases to hold office, on the other hand, are now specifically and formally set out in the Constitution. Unless the Prime Minister ceases to function in office by death, resignation, or by ceasing to a Member of Parliament, the only other way in which the Prime Minister can be removed is if the Prime Minister loses the confidence of Parliament, expressed through a defeat on the Statement of Government Policy, the Appropriations Bill, or through a motion of no-confidence as per Article 48(2). The House has not expressed its loss of confidence in Prime Minister Wickremesinghe, the necessary conditional precedent, prior to his purported removal by the President on 26th October 2018.

We firmly reject the argument that the effect of the withdrawal from the National Government, as defined in Article 46(5), of the Constitution by the United People’s Freedom Alliance (UPFA) means that the Cabinet of Ministers is dissolved and the serving Prime Minister ceases to hold office. The underlying rationale of Article 48(1), on which this argument is based, is to dissolve the Cabinet when the Prime Minister ceases to hold office, and not the reverse. If the purported removal of the Prime Minister is unlawful, then there can also be no dissolution of the Cabinet.

The lack of legality and legitimacy in the presidential actions of Friday evening, which seem to have been planned secretively and executed with a suddenness that took the entire country by surprise and disbelief, is exacerbated by the President’s prorogation of Parliament. Only Parliament has the constitutional authority to determine the continuation in office of the Prime Minister, or a change of Prime Ministers. By its prorogation, the country cannot resolve the unprecedented constitutional crisis into which it has been plunged, and it fundamentally calls into question the democratic legitimacy of the President’s purported appointment of a new Prime Minister.

The current constitutional crisis is unprecedented in that Sri Lanka has never had the legality and legitimacy of its government called into question in this way. We regret and deplore the course of action that has resulted in this unnecessary crisis and democratic backsliding. It is astonishing and disappointing that a President elected with a mandate to strengthen constitutional democracy, the Rule of Law, and good governance has chosen this course.

CPA therefore reiterates its unequivocal condemnation of the unconstitutional attempt at a transfer of power, and urges the reconvening of Parliament immediately in order that it may decide the matter conclusively.

Finally, we are also gravely concerned with the ensuing violence that resulted in the first casualty this weekend. With the crisis continuing into its third day, genuine fears point to an escalation of violence if the crisis is not swiftly addressed. It is paramount the present crisis is resolved immediately in order to prevent political violence and protect the lives of all citizens.

Download the statement as a PDF in English and Sinhala. Tamil version will be available soon.

Centre for Policy Alternatives on 27 October, 2018

Paradise Lost? Preliminary Notes on a Constitutional Coup

Asanga Welikala

There were three dramatic announcements on the evening of Friday 26th October 2018 from the Presidential Secretariat, which occurred in the following order: (a) the announcement of the withdrawal of the UPFA from the government; (b) the swearing-in of Mahinda Rajapaksa before President Maithripala Sirisena as the Prime Minister; and (c) the announcement that the President has informed Ranil Wickremesinghe in writing that he has been removed from the office of Prime Minister under Article 42(4).

Even if the legality of the procedure and the clarity and meaning of the relevant constitutional provisions can be debated, the fact that the event was planned in complete secrecy, with no consultation of Parliament or giving the serving Prime Minister and Cabinet the courtesy of even a short prior intimation before the course of action was made public, that it was suddenly carried out on a Friday evening, and that it has taken the country by total surprise, point to some extremely questionable motives.

Indeed, the whole set of circumstances suggest not the way a change of government ought to occur in a democracy, but the sharp practices associated with a constitutional coup, which is likely to lead to a constitutional crisis. It is a constitutional coup because the serving Prime Minister has not legally ceased to function in office before a new Prime Minister has been appointed. And it will lead to an unprecedented constitutional crisis because there are now two competing Prime Ministers and their parties jostling for power, authority, and legitimacy at the very heart of the state. Until one of these persons – Mahinda Rajapaksa or Ranil Wickremesinghe – can demonstrate that he has the confidence of Parliament through the support of a majority of MPs, and force the President to accept the will of Parliament, the crisis will not be resolved. Only time will tell what long-term damage this does to Sri Lanka’s constitutional fabric.

After the Nineteenth Amendment was enacted in 2015, the Prime Minister can only cease to hold office by death, resignation, by ceasing to be a Member of Parliament, or if the government as a whole has lost the confidence of Parliament by a defeat on the throne speech, the budget, or a vote of no-confidence (Articles 46(2) and 48). Since the Constitution after the Nineteenth Amendment specifies these ways in which the Prime Minister ceases to hold office, and has impliedly removed the previous power of the President to remove the Prime Minister at will, it follows that there are no other ways in which this can happen. In particular, the President can only appoint another Prime Minister where the serving Prime Minister has lost office in any one of these ways.

It is clear that the serving Prime Minister has not ceased to hold office in any one of these ways. Rather, the President has purportedly removed the Prime Minister from office by acting under the provisions of Article 42(4), which states that the President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament. The President seems to have taken these words rather too literally than is constitutionally permissible. When this provision speaks of the President’s opinion, it contemplates not the subjective and personal opinion of the President as to which MP is best suited to be Prime Minister, but an objective and constitutional view formed by reference to who can command the confidence of Parliament. This is usually, although not always, the leader of the largest party represented in Parliament.

Prime Minister Wickremesinghe survived a vote of no-confidence by a substantial majority earlier in the year. No other canvassing of Parliament’s confidence has occurred since then, or before the purported appointment of Rajapaksa tonight, and therefore the President can neither constitutionally remove a Prime Minister who has not lost the confidence of Parliament nor appoint another in his place.

It must also be stated that Article 42(2) speaks only of the appointment of the Prime Minister by the President and says nothing about the removal of the Prime Minister by the President. While the power of dismissal could be assumed as inherent to the power of appointment in the constitution prior to 2015, the Nineteenth Amendment has changed this by now providing expressly for the specific ways in which the Prime Minister can be removed (under the previously noted Articles 46(2) and 48). That these procedures have not been followed render the purported presidential acts tonight illegal and unconstitutional.

If the parliamentary numbers have changed since Wickremesinghe’s confidence vote in April in favour of a majority now supportive of Rajapaksa by, among other things, the withdrawal of the UPFA from the national government – presumably the basis for tonight’s presidential acts – then it is also not clear why Sirisena and Rajapaksa did not choose to take the constitutional path to removing Wickremesinghe by defeating him in Parliament first. The crisis will be prolonged if Rajapaksa cannot swiftly demonstrate his command of Parliament, but the strategy he and Sirisena have followed tonight shows that they have chosen to seize the political initiative and momentum by the element of surprise, with the probable intention of consolidating their hold on the state machinery and in particular the police and armed forces over the weekend, before conforming to constitutional and parliamentary niceties. They would also quite correctly have concluded that technical illegalities would not effectively be justiciable, because it is unlikely in the extreme that the Sri Lankan courts would risk a venture into such a high-stakes political game.

This kind of behaviour of course is entirely normal in Rajapaksa, and to his credit, he has never pretended to be anything other than a banana republic presidential populist. But Sirisena was elected in 2015 exactly to instantiate changes to curtail this dubious and destructive strain in Sri Lankan politics. His descent from the heroic standard-bearer of high idealism to a despised villain of the lowest form of low politics has been truly Miltonian.