Mahinda Rajapaksa cannot become

Prime Minister

Photo courtesy WSJ

by Reeza Hameed - on 07/31/2015

The question whether ex-President Mahinda Rajapaksa is eligible to be

appointed to the Prime Ministers post if he has the support of a majority of
members in Parliament following the August 17 poll is the subject of current
debate.
President Sirisena has made public his intention not to appoint Rajapaksa
as the Prime Minister and has hinted that there are enough seniors in the
party to be the Prime Minister.

There are some within the UPFA who want Rajapaksa as their Prime Minister
in the event of a UPFA majority in Parliament. A.H.M. Fowzie, for instance,
has acknowledged that the appointment of the Prime Minister is the
prerogative right of the President but that, after the elections are over, the
UPFA will prevail upon President Sirisena to accommodate Rajapaksa as the
Prime Minister. Another UPFA candidate has threatened to do a
Dahanayake and run around with the mace if Mahinda Rajapaksa is ignored
for the post. G.L. Peiris has weighed in to say that nowhere in the
constitution is it stated that a former President cannot become Prime
Minister. The President, he said, must appoint as Prime Minister the member
who commands the support of a majority of parliamentarians, and he must
appoint Mahinda Rajapaksa if he happened to be that person. Former Chief
Justice Sarath Silva has declared as untenable the argument that Rajapaksa
is disqualified from acting as President simply because he has already been
elected twice as President.
It is the President who must appoint the Prime Minister. His power to
appoint the Prime Minister is located in Article 42 (4) of the Constitution. It
is stated in that Article that (t) he President shall appoint as Prime Minister
the Member of Parliament, who, in the Presidents opinion, is most likely to
command the confidence of Parliament.
Those who would like Rajapaksa as their Prime Minister have, it seems,
argued that the President is bound by British Parliamentary conventions in
the appointment of the Prime Minister. Lal Wijenayake (Colombo
Telegraph30.07.2015) has argued to the contrary, asserting that the
President is not just a constitutional figurehead and that the appointment
depends on the opinion of the President. He has identified certain reasons
which might have led President Sirisena to form his opinion against a

Rajapaksa premiership.
I take a different approach and venture to suggest that an analysis of the
Constitution would point to impediments in the Constitution that would
constrain the Presidents discretion under Article 42 (4) so as to prevent
him from appointing Rajapaksa as the Prime Minister. Let me explain.
A provision in the constitution has to be read in its context and as part of a
whole. A part of anything cannot be understood without an understanding
of the whole. It must be read in harmony with the rest of its provisions.
Article 42(4) cannot be read on its own, and there are other provisions in
the Constitution that would impinge upon the interpretation of this
provision.
Articles 31 (2) and 92 provide that no person who has been elected twice as
President shall be qualified thereafter to be elected to such office by the
People. It is not disputed that they operate to disqualify Rajapaksa from
being elected as President because he has been elected twice already. The
prohibition against a person holding the office of the President for more
than two terms has as its rationale that the perpetuation of power in the
same person is likely to lead to its abuse. It has a democratic basis. The
people voted out the ex-President at the recent poll because they did not
want him to serve a third term. The Eighteenth Amendment, that permitted
the ex-President to contest a further term, has been abolished by the
Nineteenth Amendment, which has reinstated the two term limit.
If Mahinda Rajapaksa is appointed as Prime Minister it would enable him, in
certain circumstances, to exercise the powers of the President, albeit
temporarily. The problem that would arise if Rajapaksa is appointed as
Prime Minister becomes apparent if we examine those provisions in the
Constitution which provide for the Prime Minister to act in the Presidents

office, either because a vacancy has arisen in that office prior to the
expiration of the term of his office or because he is unable to act
temporarily.
A vacancy in the Presidents office can arise, for instance, upon his death,
resignation or removal from office. In that case, Parliament shall elect one
of its members as President for the unexpired period of the term, provided
that the person so elected by Parliament is qualified to be elected to the
office of the President. As Rajapaksa is disqualified by Articles 31(2) and 92
to be elected as President, Parliament cannot elect him to fill a vacancy in
that office, even if the unexpired period of the term is only a day and the
members are unanimous in their desire to elect him. If a person cannot be
elected as President by the People, then he cannot be elected by the
representatives of the People.
It is provided that where the vacancy arises upon the Presidents death, for
example, the Prime Minister shall act as President until the vacancy is filled
by an election by Members of Parliament. There are other occasions when
the Prime Minister may have to act temporarily in place of the President.
Such an occasion may arise, for example, when the Presidents election has
been declared void by the Supreme Court pursuant to an election petition.
In that case, the Prime Minister is required to act as President until such
time as a fresh presidential poll is taken. The President may also appoint
the Prime Minister to act in his place in the event of his illness or absence
from Sri Lanka.
On these occasions the Prime Minister gets to become the President by a
process other than by election. As Article 31(2) disqualifies a person who
has been elected twice as President from thereafter being elected to such
office by the People, can it be suggested that there is no prohibition to that

person occupying that office other than by election? It is not a valid

suggestion.
The objective underlying the prohibition against a twice elected President
from being elected for a further term is to bar him from exercising the
powers of that office. It should not, therefore, make any difference as to
how he gets to exercise those powers. If a person cannot be elected as
President, then it should follow that he cannot also be appointed to that
office. It would be illogical to argue that the People cannot elect Rajapaksa
as President even for a day, but the President, who is elected by the People,
may appoint him to act in that post.
Even otherwise, post 19th Amendment, the President will have to exercise
many of the powers of his office on the advice of the Prime Minister. Article
46(2), which was introduced by the 19the Amendment, goes so far as to
say that a Minister, once appointed, cannot be removed by the President
except on the advice of the Prime Minister. As Sarath Silva has said,
arguably the Prime Minister is more powerful than the President according
to the 19thAmendment.
It is a maxim of law that what cannot be done directly, cannot also be done
indirectly. The provisions of the law cannot be evaded by shift or
contrivance and the objects of a law cannot be defeated in an indirect or
circuitous manner. Indeed, Article 40(2) says that the provisions of the
Constitution relating to the President shall apply, in so far as they can be
applied, to an acting President.
It has been suggested that it would be contrary to democratic principles not
to appoint Rajapaksa as Prime Minister if a majority of the members wish to
have him appointed to that office. However, it is negated by another

democratic principle embodied in the prohibition that a person should not

be allowed to wield presidential powers directly or indirectly beyond a
certain period.
Posted by Thavam