Removal Of Six SLFP Ministers -The Legal Position
By Y L S Hameed –APRIL 8, 2018
Y L S Hameed
With the no confidence motion having been defeated, the new issue that has cropped up is whether the six SLFP Ministers who voted for NCM should be removed from the Cabinet. The fact that the UNP is very serious about the removal of these six Ministers is amply manifested in the handing over of a no confidence motion against them by UNP backbenchers.
The six Ministers are reported to have said that they have already written to the President expressing their willingness to step down from the Cabinet. Naturally it is unethical for them to continue in a Cabinet in which they have expressed lack of confidence.
In the meantime, the Prime Minister is said to have instructed the backbenchers to withdraw the Motion as it was not approved by the Party. All these moves seem to be manoeuvred to exert pressure on the President to agree to the removal of these Ministers since the President, it is also reported, is unwilling to remove these Ministers.
In this regard, two aspects need to be considered. One is political and the other is legal. Both the UNP and the SLFP have agreed to continue with their political marriage. President therefore has every right to insist that they continue in the Cabinet. But the question that will cry out for an answer there is how the President, being the head of the Cabinet sit with Ministers in the same Cabinet when the very Ministers have already declared their lack of confidence in it. Wouldn’t it sound ludicrous and reflect badly on the President?
The next is the legal position.
Appointment of Ministers
Article 43(2) of the Constitution ( 19th Amendment) States, “The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries……”
It is clear from the above provision that the President cannot appoint a minister on his own except on the advice of the Prime Minister.
Removal of Ministers
Article 46(3) states, A Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers and a Deputy Minister, shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function…….. unless he-
(a) is removed from office under the hand of President on the advice of the Prime;
Here, power of removal is vested with the President. But to decide as to who should be removed is a matter not for the President but for the Prime Minister. In other words, the President cannot remove a minister on own except on the the advice of the Prime Minister.
The pivotal question here is whether the President can reject the advice tendered by the Prime Minister with regard to the removal of a minister. The president cannon do so because the only instance where the President can remove a minister is when the Prime Minister tenders such advice. Hence the President cannot have a discretion on whether to act on the advice of the Prime Minister or not.
Therefore the President is in effect a kind of non- executive president with regard to appointment and removal of Ministers after the 19th Amendment.
