Leonard T. Koonce 
DISMISSAL OF THE PRESIDENT
Dr Nihal Jayawickrama
With each passing day, the demand for the resignation of the President grows in scale, becomes more strident, more widespread, and even resonates beyond the borders of this country. The president’s response was to secure the resignation of his cabinet of ministers while retaining his brother as prime minister, then filling three key portfolios and, bizarrely, one of dubious value. He chose to keep the others to himself, including the currently critical health, potency, and energy functions. The opposition responded by collecting signatures for two parliamentary motions. One seeks to express its lack of confidence in the government, while the other seeks to impeach the president. Both of these are clearly wrong.
Motion of no confidence in the government
Article 43 of the Constitution states that the Cabinet of Ministers is collectively responsible and accountable to Parliament. Therefore, a motion of no confidence in the Government, if adopted by a simple majority, will lead to the dissolution of the Cabinet of Ministers. Next, Article 49(2) requires the President to appoint a new Prime Minister who enjoys the confidence of Parliament and the new Ministers. It does not guarantee the resignation of the president. It therefore fails to respond to the demands of millions of people demonstrating in the streets of this country.
Resolution for impeachment of the President
Under Section 38, a resolution may be presented to the President alleging that the President is permanently unable to perform the duties of his office by reason of mental or physical infirmity; or that the President is guilty of: (a) willful violation of the Constitution; (b) Treason; (c) Bribery; (d) Misconduct or corruption involving abuse of the powers of office, or (e) Any offense involving moral turpitude.
The resolution must be signed by two-thirds of the total number of deputies or, if the president is satisfied that the allegations merit a Supreme Court investigation, by half of the total number of deputies. Thereafter, the resolution is referred to the Supreme Court for investigation and report, with the President having the right to appear and be heard. If the Supreme Court signals that it has found the President guilty of the charges, Parliament can impeach him by passing a resolution to that effect with a two-thirds vote in favor. President JR Jayewardene famously remarked that in drafting Article 38 he ensured that it would be virtually impossible for Parliament to remove a President from office. To attempt to invoke it today, as the opposition would, is an utterly futile exercise.
Motion of no confidence in the president
Section 42 of the Constitution states that the President “is responsible to Parliament for the exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law in force relating to public security”. This means that Parliament has the right, indeed the obligation, to hold the President accountable for the proper execution of his powers, duties and functions.
Immediately after taking office, President Gotabhaya Rajapakse granted massive tax cuts, resulting in a sharp reduction in state revenue. He then appointed a political sidekick to the strictly apolitical post of Governor of the Central Bank who proceeded to print money with cheerful abandon. When inflation hit astronomical highs and the value of our currency hit lows, the president remained silent. His maniacal decision to immediately ban the use of chemical fertilizers has destroyed our agricultural sector and our tea industry. Its inability to secure a steady supply of gas, diesel, petrol, powdered milk and other food and household essentials has resulted in misery and reduced our people to a state of abject poverty.
In the face of a record like this, Parliament is certainly entitled to hold the President accountable for his manifest inability to exercise the powers, duties and functions of his office. Does the opposition ignore article 42 of the Constitution? If, following the adoption of a motion of no confidence in the Speaker, the latter resigns, as is required, Rule 40 obliges Parliament to elect, by secret ballot, one of its members for the unexpired term of office of the president leaving the office. This election must take place as soon as possible, within 30 days of the vacancy. In the interim, the Prime Minister or, in his absence, the President exercises the functions of President.
Re-establishment of the parliamentary executive
Whether or not Parliament succeeds in securing the President’s resignation, it is now clearly evident that neither a retired mid-level soldier nor a professional politician can carry on their shoulders the full and complete burden of governing this country, as the demands the misguided 20th Amendment to the Constitution. It is time to restore the parliamentary government that existed in this country for thirty years, from 1947 to 1977, and which was then restored, with unnecessary restrictions, from 2015 to 2020. During this previous period, a Prime Minister and a Cabinet of Ministers, chosen and accountable to a Parliament made up of members elected from single or multi-member constituencies, have ensured the stability and security of this country, despite an attempted military coup in 1962 and a youth insurrection in 1971. It’s time to move the 21st Amendment to the Constitution.
The 21st Amendment
The following should be accepted as some of the essential features of the 21st Amendment to the Constitution:
a) It should provide for the election by Parliament (or by a suitably constituted electoral body) of a President who shall be Head of State, Chief Executive and Commander-in-Chief of the Armed Forces. He/She must be a person who has not been involved in active politics for at least the previous five years. With few exceptions, he/she must act on the advice of the Prime Minister or, in specific matters, the competent minister.
b) In accordance with the two fundamental principles of international law of non-discrimination and self-determination, the requirement of power sharing at the center should be incorporated. Regardless of which political party forms the government, the different ethnic groups should be mandatorily represented in the Cabinet, at least in proportion to the number of those members elected to Parliament. Thus, the minority communities will be constitutionally guaranteed not tokenism (like, for example, C.Kumarasuriar and Lakshman Kadirgamar) but of a real representation, both within the legislature and within the government. Policy-making will then be done by consensus of the different ethnic groups, which should be the case in a multi-ethnic, multi-religious and multi-linguistic country such as Sri Lanka.
c) It should incorporate the provisions of international human rights treaties that Sri Lanka has ratified.
d) It should provide for election to Parliament in single or multi-member constituencies (as appropriate).
(e) In line with contemporary international developments, it should guarantee the independence of the judiciary and the civil service through the establishment of a Judicial Council and a Civil Service Commission responsible for the appointment, transfer and disciplinary control of judges and civil servants (at all levels), appointments at the highest levels being made by the President on the advice of these bodies.
(f) Clergy of all religions should be barred from standing for election to Parliament.
(g) Judges, whether sitting at first instance or on appeal, should not be appointed by the government to sit on commissions of inquiry while they are in service or for a period of five years after their departure from retirement.
Recovery of stolen assets
It is no surprise that the continued demands of protesters in the streets for the country’s stolen assets to be recovered are being ignored by the government. The Stolen Asset Recovery Initiative (STAR) is a partnership between the World Bank and the United Nations Office on Drugs and Crime (UNODC). It was created precisely to help governments recover assets stolen by political leaders. His accomplishments are spectacular. I worked with a STAR team in Egypt following the massive protests in Tahrir Square during the “Arab Spring”. However, he only responds to the invitation of a government. The current government is unlikely to do so. The previous “Yahapalana” government did not show any inclination in this direction either. Are political leaders, regardless of belief, protecting each other?
