Impeaching the President
Posted on January 31st, 2018

By Faizer Shaheid Courtesy Ceylon Today

Elections are only a few days away and the politicians are at it again trying to tear each other apart. The political rivalries have stood the challenge of time, continuing to appeal to summon the inner hopes of the people despite their anticlimactic approach.

Two weeks ago, a fresh saga unveiled when President Maithripala Sirisena marched out from a Cabinet meeting in disgust that Members of the United National Party (UNP) were slinging mud at him regularly. Prime Minister Ranil Wickremesinghe had to make a statement requesting UNP members from casting aspersions at Sirisena. Still, the cracks began to show.

Although Sirisena had warned the UNP against expressing any dissent to his actions, the President’s own Party, the Sri Lanka Freedom Party (SLFP) continued to express anti-UNP sentiments. Especially following the Bond Scam revelations, Sirisena had asserted that he would take the finance related ministries under his wing and maintain control of the economy through a special economic council.

Going even further than this, rumours had been flying around that President Sirisena also wished to replace Prime Minister Ranil Wickremesinghe with a new person at the helm. UNP Parliamentarian Chaminda Wijesiri expressed his outrage with an out and out challenge. He stated that if President Sirisena did replace Ranil Wickremesinghe as Prime Minister, the UNP will prepare to impeach President Sirisena in Parliament.

Procedure of impeachment

Impeachment can be considered the only check that Parliament maintains to counter the extensive powers of the Executive President. It is far-fetched and nearly impossible to execute given the odds. To impeach the President, a Member of Parliament will have to follow the procedure laid down in Article 38 (2) of the Constitution.

Article 38 (2) (a) states that any Parliamentarian may give a notice of resolution to the Speaker on the grounds that the President is unable to execute his functions due to mental or physical infirmity, or if the President is found guilty of certain acts. These actions include intentional violation of the Constitution, treason, bribery, misconduct or corruption involving abuse of power of the President, or any offence involving moral turpitude.

Under Article 38 (2) (b), the Speaker cannot entertain the resolution unless the resolution is signed by not less than two-thirds of the Members of Parliament. If the resolution cannot obtain two-thirds of the signatures, then at least one-half of the Parliamentarians should have signed it and the Speaker must be satisfied that the allegations warrant an enquiry.

Practicality of resolution

The primary challenge in executing an impeachment is to find an allegation that is sufficiently promising. President Sirisena does not appear to have any mental or physical ailments. Therefore, the UNP can only charge him on merit of guilt for a particular offence.

As of now, Sirisena has not been guilty of treason where he has betrayed the country so blatantly. Therefore, treason will not weigh for much. Bribery is a possible charge considering the allegations that have been levelled against President Sirisena for his affiliation with a prominent electronic media organization. The Australian allegation of corruption, also known as the SMEC scandal, which was never investigated, was alleged to have occurred prior to Presidency and therefore cannot be accounted for in an impeachment.

Misconduct or abuse of powers of the office of the President is also a fairly absurd charge unless the UNP can make startling revelations of corruption by the President. However, this too will not stand at the moment. President Sirisena has also not found himself involved in any offence of moral turpitude, nor is it likely to happen, judging by the general calm of President Sirisena.
However, President Sirisena may be charged with intentional violation of the Constitution on multiple counts. Firstly, for the action of appointing Ranil Wickremesinghe as Prime Minister in 2015 without formally removing D.M. Jayaratne in writing first. This was an express violation of the Constitution which states in Article 46 (2) (Article 47 of the Constitution prior to the amendment) that the Prime Minister shall continue until he is removed in writing.

The President is also guilty of removing the former Chief Justice, Mohan Peiris from office without having impeached constitutionally. Every Judge holds the right to stay in office until and unless he is impeached in Parliament in accordance with the procedure laid down in Section 107 (2) of the Constitution.

Likewise, there are a few other Constitutional violations that may warrant an investigation, for which President Sirisena may be impeached. Apart from these, there are no charges at present against Sirisena that may draw the interest of the Speaker. This is unless the UNP can reveal a few of the secrets that may still lay hidden to the general public.

Presenting the resolution

While the UNP may continue to have a definite 106 Parliamentarians in office, this is still short of the simple majority required as a minimum requirement to present a resolution to the Speaker. Even if 106 members stand united with strong allegations in hand, they may still require a further seven members of Parliament. The Janatha Vimukthi Peramuna (JVP) will not be willing to align with the UNP unless the allegations are strong, while the Tamil National Alliance (TNA) appears to be much more in favour of President Sirisena and Prime Minister Wickremesinghe. The Joint Opposition is far less likely to support either of the two factions, as they would gain from neither.

However, if the UNP can gain a simple majority and hold strong allegations against the President, the Speaker is likely to consider it. This is especially considering that the Speaker is also a stalwart of the UNP.

The problem, however, lies in the fact that there does not appear to be too many allegations against the President that could potentially have Sirisena considered as being unfit to be President. If the allegations are vague, they will need the support of the Joint Opposition, so as to form a two-third majority. However, to imagine this, given the current circumstances is to be delusional.

Further constitutional requirements

If all of the requirements of presenting an impeachment motion against the President is satisfied, then the Speaker will have to act on it by forwarding the allegations to the Supreme Court for investigation. At that juncture, it will matter if the allegations were true or merely an ambitious plot to oust the President from office.

Once the Supreme Court has considered the case, the President will be summoned to appear in person or with an Attorney-at-Law to present his case. The Supreme Court will only make its determination after this. Even after the Supreme Court determination has been made, the resolution will once again stand for voting in Parliament. It must pass with a positive votefrom two-third of the Parliamentarians, and only then can the President be ousted.

The likelihood of failure

During the interim period, the President will continue in his capacity undeterred and he will be very much capable of negotiating with parties or Parliamentarians to alter their vote. He could appoint 30 new ministers and 40 deputy ministers from the opposing lot, so as to keep them on his side or promise them luxuries like never before.

Even if he refuses to do so, the allegations are likely to be vague at best and will most likely fail in the Supreme Court. Even if it could be successful, the President could utilize his powers of appointment as a Judge to influence a decision.

In spite of everything, the President will also have powers of prorogation according to Article 70 of the Constitution. He could prorogue Parliament for a period of up to two months at a time, and using this he could intentionally delay the impeachment proceedings.

The only time that Parliament had drawn closer to impeaching the President was during the time of President Ranasinghe Premadasa. Politicians of the calibre of Lalith Athulathmudali and Gamini Dissanayake moved to pass an impeachment motion with two-thirds of Parliament in favour of it. However, President Premadasa used his powers of prorogation to delay proceedings and thereafter dissolved Parliament.

At present, the power to dissolve Parliament has not been availed until and unless four years and six months have been completed. Yet, President Sirisena will have plenty of tricks up his sleeve to play around with so as to detract his detractors and keep them at bay.

Conclusion

If any such move is made to impeach the President, the move is very likely to fail. Impeachment is a mere illusion designed by a foxy President to appear as though Parliament had a check over the President. It is not! It is rather a complete waste of time. The probable result will be an eventual no confidence motion against the government, or a failure of a budget vote which would then empower the President to dissolve Parliament earlier than four years and six months.

In any case, Parliamentarian Chaminda Wijesiri is isolated in most of his comments to date. Most UNP Parliamentarians are aware of what such tomfoolery can earn them in the long run.

About the author:

The writer is a Political Analyst and an independent researcher of law. He holds a postgraduate degree in the field of Human Rights and Democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)
[email protected]

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