The dual elective aspects of the social contract – namely, the election of the Head of the Executive branch of governance, the President, and the Legislative branch of governance, the Parliament, including the Government – have been, if the masses on the streets at present are any indication to go by, unilaterally declared, null and void. The tenant, President Gotabaya Rajapaksa, who is the temporary custodian of the State and is at the midpoint of his five-year term, it seems, has overstayed his welcome; and the landlord, in this case the citizenry and in particular those who exercised their franchise on behalf of him, is livid. “Go Home Gota” is the clarion call of the hour. Yet, much to the chagrin of those clamouring for his resignation, Rajapaksa has, through his subordinates, informed that he will not be stepping down.
It is true that Gotabaya Rajapaksa and the decisions taken by his Government have been the twin architects of the manifold crises that abound within Sri Lanka. However, does that mean that a President who is democratically elected, with a supermajority, and still commands a majority in the Parliament, albeit a simple one in terms of the number of seats on the Government side, should resign, simply because he has become deeply unpopular – even though we should not make the mistake of conflating the sound and fury on the streets as translating to a rejection as signified by ballots at a poll, the latter which is an accurate and therefore more objective, assessment – and is incompetent on certain fronts? Legally speaking, as the way things are constitutionally, the answer is a resounding no.
Hence, if the President is to succumb to public furore and crippling pressure, and in turn step down, it would not only set a bad precedent, but set Sri Lanka down the slippery slope of the tyranny of the commons. However, resigning from office can also be a private decision, with both ethical and moral dimensions to be taken by the President, as American President Richard Nixon did post-Watergate, pre-impeachment.
Foreign Affairs Minister Prof. G.L. Peiris, briefing the Colombo-based diplomatic corps, claimed the demonstrators do not seem to want a solution based on the available options in keeping with the Constitution. On the same note, the Bar Association of Sri Lanka has pointed out that any solution to the present political and economic crisis has to be found within the framework of the democratic constitutional structure, and that any solution outside the framework of the Constitution will lack legitimacy and would be open to be challenged within the legal system.
What then are the legal options available to the people with regard to their primary demand of “Go Home Gota”?
The main Parliamentary Opposition – the Samagi Jana Balawegaya (SJB) – has said that it has commenced work on a no-confidence motion, and may soon pursue an impeachment process against the President, with the National People’s Power (NPP) announcing its support for both measures. These are the only options available in the Constitution to achieve the desired result of ousting the President, one indirectly through the pressure of a loss of Government, and the other directly by proving the President is unfit to hold that position.
However, for an MP to bring a resolution for the impeachment of the President on the basis of Constitutional Article 38(2)’s ground of him being “permanently incapable of discharging the functions of his office by reason of mental infirmity”, it must be signed by two-thirds of all the MPs, including those not present, or half of all the MPs, including those not present, in order for the Speaker of the Parliament to accept such notice of resolution.
Additionally, the Speaker must be satisfied that such allegation merits a Supreme Court (SC) inquiry and report. If these conditions are met, thereafter, the said resolution must be passed by two-thirds of all the MPs, including those not present, voting in its favour. Then, the Speaker has to refer the allegation contained in the said resolution to the SC for an inquiry and a report, whereafter, the SC, after due inquiry at which the President has the right to appear and be heard, in person or by an attorney, makes a report of its determination along with its reasons, to the Parliament.
If the SC is of the opinion that the President is permanently incapable of discharging the functions of his office by reason of mental infirmity, the Parliament may, by a resolution passed by two-thirds of all the MPs, including those not present, vote in its favour to remove the President from office. This is however a cumbersome process that has no historical precedent of success.
President’s Counsel and Government MP Dr. Wijeyadasa Rajapakshe in his 21st Amendment to the Constitution Bill has, with regard to the impeachment clause, proposed to remove the requirement for the resolution for impeachment to be signed by two-thirds of the entire Parliament prior to its submission to the Speaker (one third will suffice per the Amendment), and has also done away with both the Speaker’s discretion to be “satisfied” that such allegation or allegations warrants/warrant a SC inquiry and also the need for a SC inquiry report. According to the Amendment, the President can be impeached with a two-thirds vote of the entire House. This amendment should be seriously considered in any future constitutional reform.
Furthermore, the power of post-enactment judicial review must be afforded to the judicial arm of governance (the Judiciary), while the option of recall elections being provided to the electorate, measures related to dealing with crossovers or defections and the abuse of the national list being put in place, and campaign finance reforms being effected, have to be included in any such constitutional reform along with provisions for the ease of the formation of a caretaker or emergency/interim/provisional/transitional or national Government.
With the economic and resultant social crisis festering and spiralling towards instability in the absence of a solution to the political crisis, and the likelihood of the country running its course, if the deteriorating state of the status quo continues to prevail as is (the “no country left to salvage” scenario), which are both completely untenable situations, the onus is on the Government and the Parliamentary Opposition (the SJB, the Tamil National Alliance, and the NPP, amongst others) as the sole arbiters and trustees of public finance, to compromise and negotiate amongst themselves, to form an interim or caretaker Governmental coalition.
This would also be an opportunity to bring in some financial movers and shakers to key Governmental positions by calling for the resignation of redundant MPs who came in through the National List. These moves will help address the a priori crisis of non-professionalism and incompetence that has aggravated the economic crisis.
Sri Lanka needs not a confederation of dunces (per American novelist John Kennedy Toole) but a confederation akin to the rotating first among equals Presidency of the Swiss Federal Council, of able, capable and willing minds.The ‘precedents’ of a Presidential ouster
10 Apr 2022
The ‘precedents’ of a Presidential ouster
10 Apr 2022
The dual elective aspects of the social contract – namely, the election of the Head of the Executive branch of governance, the President, and the Legislative branch of governance, the Parliament, including the Government – have been, if the masses on the streets at present are any indication to go by, unilaterally declared, null and void. The tenant, President Gotabaya Rajapaksa, who is the temporary custodian of the State and is at the midpoint of his five-year term, it seems, has overstayed his welcome; and the landlord, in this case the citizenry and in particular those who exercised their franchise on behalf of him, is livid. “Go Home Gota” is the clarion call of the hour. Yet, much to the chagrin of those clamouring for his resignation, Rajapaksa has, through his subordinates, informed that he will not be stepping down.
It is true that Gotabaya Rajapaksa and the decisions taken by his Government have been the twin architects of the manifold crises that abound within Sri Lanka. However, does that mean that a President who is democratically elected, with a supermajority, and still commands a majority in the Parliament, albeit a simple one in terms of the number of seats on the Government side, should resign, simply because he has become deeply unpopular – even though we should not make the mistake of conflating the sound and fury on the streets as translating to a rejection as signified by ballots at a poll, the latter which is an accurate and therefore more objective, assessment – and is incompetent on certain fronts? Legally speaking, as the way things are constitutionally, the answer is a resounding no.
Hence, if the President is to succumb to public furore and crippling pressure, and in turn step down, it would not only set a bad precedent, but set Sri Lanka down the slippery slope of the tyranny of the commons. However, resigning from office can also be a private decision, with both ethical and moral dimensions to be taken by the President, as American President Richard Nixon did post-Watergate, pre-impeachment.
Foreign Affairs Minister Prof. G.L. Peiris, briefing the Colombo-based diplomatic corps, claimed the demonstrators do not seem to want a solution based on the available options in keeping with the Constitution. On the same note, the Bar Association of Sri Lanka has pointed out that any solution to the present political and economic crisis has to be found within the framework of the democratic constitutional structure, and that any solution outside the framework of the Constitution will lack legitimacy and would be open to be challenged within the legal system.
What then are the legal options available to the people with regard to their primary demand of “Go Home Gota”?
The main Parliamentary Opposition – the Samagi Jana Balawegaya (SJB) – has said that it has commenced work on a no-confidence motion, and may soon pursue an impeachment process against the President, with the National People’s Power (NPP) announcing its support for both measures. These are the only options available in the Constitution to achieve the desired result of ousting the President, one indirectly through the pressure of a loss of Government, and the other directly by proving the President is unfit to hold that position.
However, for an MP to bring a resolution for the impeachment of the President on the basis of Constitutional Article 38(2)’s ground of him being “permanently incapable of discharging the functions of his office by reason of mental infirmity”, it must be signed by two-thirds of all the MPs, including those not present, or half of all the MPs, including those not present, in order for the Speaker of the Parliament to accept such notice of resolution.
Additionally, the Speaker must be satisfied that such allegation merits a Supreme Court (SC) inquiry and report. If these conditions are met, thereafter, the said resolution must be passed by two-thirds of all the MPs, including those not present, voting in its favour. Then, the Speaker has to refer the allegation contained in the said resolution to the SC for an inquiry and a report, whereafter, the SC, after due inquiry at which the President has the right to appear and be heard, in person or by an attorney, makes a report of its determination along with its reasons, to the Parliament.
If the SC is of the opinion that the President is permanently incapable of discharging the functions of his office by reason of mental infirmity, the Parliament may, by a resolution passed by two-thirds of all the MPs, including those not present, vote in its favour to remove the President from office. This is however a cumbersome process that has no historical precedent of success.
President’s Counsel and Government MP Dr. Wijeyadasa Rajapakshe in his 21st Amendment to the Constitution Bill has, with regard to the impeachment clause, proposed to remove the requirement for the resolution for impeachment to be signed by two-thirds of the entire Parliament prior to its submission to the Speaker (one third will suffice per the Amendment), and has also done away with both the Speaker’s discretion to be “satisfied” that such allegation or allegations warrants/warrant a SC inquiry and also the need for a SC inquiry report. According to the Amendment, the President can be impeached with a two-thirds vote of the entire House. This amendment should be seriously considered in any future constitutional reform.
Furthermore, the power of post-enactment judicial review must be afforded to the judicial arm of governance (the Judiciary), while the option of recall elections being provided to the electorate, measures related to dealing with crossovers or defections and the abuse of the national list being put in place, and campaign finance reforms being effected, have to be included in any such constitutional reform along with provisions for the ease of the formation of a caretaker or emergency/interim/provisional/transitional or national Government.
With the economic and resultant social crisis festering and spiralling towards instability in the absence of a solution to the political crisis, and the likelihood of the country running its course, if the deteriorating state of the status quo continues to prevail as is (the “no country left to salvage” scenario), which are both completely untenable situations, the onus is on the Government and the Parliamentary Opposition (the SJB, the Tamil National Alliance, and the NPP, amongst others) as the sole arbiters and trustees of public finance, to compromise and negotiate amongst themselves, to form an interim or caretaker Governmental coalition.
This would also be an opportunity to bring in some financial movers and shakers to key Governmental positions by calling for the resignation of redundant MPs who came in through the National List. These moves will help address the a priori crisis of non-professionalism and incompetence that has aggravated the economic crisis.
Sri Lanka needs not a confederation of dunces (per American novelist John Kennedy Toole) but a confederation akin to the rotating first among equals Presidency of the Swiss Federal Council, of able, capable and willing minds.Kapruka
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Discover Kapruka, the leading online shopping platform in Sri Lanka, where you can conveniently send Gifts and Flowers to your loved ones for any event. Explore a wide range of popular Shopping Categories on Kapruka, including Toys, Groceries, Electronics, Birthday Cakes, Fruits, Chocolates, Automobile, Mother and Baby Products, Clothing, and Fashion. Additionally, Kapruka offers unique online services like Money Remittance, Astrology, Medicine Delivery, and access to over 700 Top Brands. Also If you’re interested in selling with Kapruka, Partner Central by Kapruka is the best solution to start with. Moreover, through Kapruka Global Shop, you can also enjoy the convenience of purchasing products from renowned platforms like Amazon and eBay and have them delivered to Sri Lanka.Send love straight to their heart this Valentine's with our thoughtful gifts!