The law of impeachment and vote of no confidence has recently assumed an importance in mainstream and social media circles which renders a drilling down of the minute details of the constitutional provisions, the procedure involved and the difficulties along the way. The opposition parties are intent on bringing in a NCM and impeachment motion to oust Rajapaksa brothers from power as public calls for resignation of president and prime minister are gathering momentum. Though there is political willingness from all corners to topple Rajapaksa regime, impeachment involves a lot more than a raw political process, it requires numbers and it has to be done within the confines of the existing constitutional framework.
How a vote of no confidence is carried.
Neither our Constitution nor the Standing Orders contain express provisions as to how a no confidence motion against the government should be voted on. Any member of parliament can bring in a NCM in parliament. However as a no confidence motion is considered a special business of the parliament, prior to bringing in a no confidence motion, Standing Orders are suspended after a majority of MPs vote in favour of such suspension. And a vote on the motion of no confidence can be taken in one of the ways set out in Standing Order No.47; either by voice, by division in the event any MP requests it or through electronic voting or asking each MP individually. According to Article 72(1) of the Constitution any question proposed in parliament can be decided by a simple majority of MPs voting in favour of it. Thus, a no confidence motion requires only a simple majority. For the vote of no confidence to succeed, the opposition should be able get the support of 113 MPs. However as the main opposition party(SJB) currently does not have the required numbers, and a consensus is yet to be reached with the 39 MPs who defected from Rajapaksa camp and TNA MPs there are odds that a NCM would not succeed. The latest news reports show that a consensus has been reached with the independent MPs and the opposition is ready to move the NCM within the next few days with signatures of 122 MPs. However as the Leader of Opposition has a different opinion on forming an interim government, there are still doubts as to whether a NCM will be voted through successfully.
In terms of Article 49(2) almost immediately upon a vote of no confidence being passed, prime minister is removed and Cabinet stands dissolved. A new prime minister whom the President in his opinion is most likely to command the confidence of parliament and a new Cabinet will have to be appointed. Since a NCM does not oust an incumbent president from his office, a new prime minister will have to be appointed by the president himself. Thus at a time when demands for president’s resignation are intensifying, the outcome of a no confidence vote is not likely to address or pacify those demands as a NCM does not remove the president. A NCM is only a process to express lack of confidence in the government which would only secure removal of the prime minister and cabinet, which if passed would mean the government has no longer the confidence of the parliament. The president unless he resigns will continue to be in office until impeached. It is only an impeachment motion passed with two thirds majority which can oust an incumbent president from his office.
Glimpse on the impeachment procedure.
Provisions which govern the impeachment of president are set out in Chapter VII of the Constitution. Under Article 42, it is expressly stated that the president is responsible to the parliament for the due exercise, performance and discharge of his powers and duties and functions under the constitution and any written law relating to public security. Today, with the ongoing economic crisis and resultant political turmoil, the country is almost on the brink of anarchism and the public security has unprecedentedly come to a jeopardized state with killings and assaults being reported in fuel ques and unfortunate incidents of shooting at unarmed protesters. The President and his government have utterly failed in their policies to protect the citizens from the harsh effects of the deepening economic crisis and thereby failed to ensure people economic, political and food security. And in the face of mounting external debts amounting to $51 billion and precipitously falling rupee, President and his Cabinet have also failed to honour and protect the country’s territorial integrity, sovereignty and its assets from aggression and threats by external forces in negotiating servicing of debts and securing credit agreements with foreign nations. President’s appointing of Cabral as CB governor and bringing his brother Basil through the back door as the Minister of Finance, were clear attempts to politicize the economic machinery of the State, which ultimately led to massive printing of money triggering rocketing inflation (Now Sri Lanka is ranked third among the countries with highest inflation).
Moreover, as the head of the Rajapaksa-dominated Cabinet, President is vicariously liable for the corruption that has been taking place among his brothers and other members of the Cabinet. According to Article 43(1) Cabinet ministers shall be collectively responsible and answerable to the Parliament. Thus when you consider the combined effect of the provisions in Articles 42 and 43, it is obvious that the president should be made answerable to the parliament for his uninformed actions, omissions and ineptness as reflected by two major blunders made in formulating and implementing policies such as his maniacal agro-chemical fertilizer ban and grant of massive tax cuts to his plutocracy as soon as he came to power. It is apt to say that no other occupant in the President’s office made terrible blunders of this nature more consistently like the current President. His full scale fertilizer ban failed to save the precious dollars it expected to save, and it instead ended up in a much anticipated reversal, ultimately destroying the country’s entire agricultural sector from tea exports to paddy harvest. Excessive tax cuts only resulted in plunging of much needed state revenue.
Whereas the Article 42 sort of lays down the conceptual foundation to the accountability of the President for his actions while in office, the Article 38(1) specifically deals with the substantive and procedural aspects of impeaching the President. By virtue of paragraph (1)(b) and (e) of this Article the office of president shall be deemed to have been vacated once he resigns from his office by writing under his hand addressed to the Speaker; or in the event he is removed from office by an impeachment motion voted through in the manner as provided for in the paragraph (2) of Article 38.
Article 38(2)(a) sets out the manner in which an impeachment motion should be carried in parliament. Accordingly any member of parliament may invoke the provisions of Article 38 to impeach the president by a writing addressed to the speaker and thereby giving notice of a resolution alleging that the president is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the president has been guilty on the following grounds;
(I) intentional violation of the constitution
(II) treason
(Iii) bribery
(IV) misconduct or corruption involving the abuse of the powers of his office, or
(V) any offense under any law involving moral turpitude.
Full particulars of the above allegations must be set out in the notice of the resolution, seeking an inquiry and report there on by the Supreme Court.
An important distinction has to be noted between the crux of the provisions in Article 42 and that of Article 38. While Article 42 has made it possible for Parliament to hold President answerable for his actions and omissions in carrying out duties and functions of his office, the article 38 had made the process of impeaching a president nearly impossible by narrowing down the impeachment grounds to five unhelpful grounds which by their nature are very difficult to prove with facts.
It is imperative that the requirements set out in the paragraph (2) (a) of Article 38 be complied with in the notice of resolution before Speaker satisfies himself that it is proper to place the resolution on the Order paper of Parliament. In addition to compliance with the above requirements, such notice of resolution must be able to muster the support of not less than two thirds majority of the whole number of the members of parliament. However a motion can be carried even where it is signed by not less than one half of the whole numbers of the members of parliament and the speaker is satisfied that the allegations set out in such motion merit inquiry and report by the Supreme Court.
Upon impeachment motion is duly passed in the manner elucidated by Article 38(2)(b), the Speaker shall refer it to the Supreme Court for inquiry and report. In terms of Article 38(2)(d) at the inquiry, president has the right to appear and to be heard in person or through an attorney at law before the Supreme Court. After due inquiry the Supreme Court makes a report of its determination to Parliament together with the reasons for such determination. In terms of Article 38(2)(e) after report of Supreme Court’s determination is conveyed to the Parliament, and the Supreme Court in its report has made a determination in favor of the motion, parliament must once again pass a resolution by not that less than two thirds majority voting in its favour. It is only after this second division is taken and two thirds majority is thereby obtained the president shall stand removed from his office. According to provisions of Article 40 the Parliament before the expiry of 30 days of the removal should elect a new president for the remaining tenure of the outgoing president. Until a new president is elected by a secret ballot, the Prime Minister or the Speaker as the case may be will act in the office of president.
Owing to the detailed and long-drawn out procedure involved in the impeachment process and also given that the time is a deciding factor in resolving the current political impasse and constitutional stalemate to restore stability in the country as a prerequisite for IMF bailout, many think impeachment option to be a futile exercise at this juncture. On top of all, our past experiences with several attempts at impeaching then all-too-powerful executive presidents have proven messier and shown us impeachment process to be a hopeless exercise with a predestined failure. 1978 Constitution is fashioned in such a way to ensure that no body would dare to impeach an incumbent president. Given the current arithmetic, it is an arduous and nearly impossible feat to accomplish. This is even more relevant where today’s opposition is divided into several different factions. 39 government MPs who defected from the ruling party and finally decided to sit in the opposition benches have created their own little independent caucus in the parliament. Make no mistake, there are even more smaller sub-groups within this independent caucus. Therefore in these circumstances garnering strength of two thirds majority for an impeachment motion is only a pipe-dream when the opposition is unable to show even a simple majority to move a NCM to topple the government. Having secured a landslide victory at the last General election polls, ruling party had a whopping majority of 157 MPs until some 39 MPs became independent, and at this moment though it is running out of steam government still has a majority of 115 in its hands.
Considering the political and economic abyss the country has plunged into and the reality that the country cannot afford to spend for an election, whether NCM would succeed or not, the most wise and prudent move on the part of all political parties would be to form an interim government until arrangements with the IMF are sorted out and normalcy is restored. The main function of the interim government would be to pass the 21stl Amendment to the Constitution. However, it is our great responsibility as people to stop the actors in the interim government from becoming another grand alliance of rogues. We all as the general public despise politicians of all colours and shades at all levels and want 225+1 and their henchmen vacated. But given the gravity of the economic crisis the country is faced with and the ground reality of country’s political culture and existing constitutional framework we have run out of options. Rogues are in abundances, in all parties. However ominous the recent future may look with the reshuffled same old faces, the only feasible and pragmatic option before the country is for all parties to come together despite their political agendas and ideologies to get the country back on its feet and to make available essential items in order to give the economically downtrodden masses much needed breathing space. Remember united, we stand and divided, we fall.
Food for thought.
And one more important thing, during the last 74 years since independence, we were ruled by family dynasties of Bandaranaikes, Premadasas Rajapaksas, and Uncles and Nephews. And one should also not simply forget about Batalanda massacres, Rathupaswala shootings, Easter bombings, and also those so called JVP insurgents who made this country a blood pool and who are now naively trying to sell their reformed-label as democracy and liberty-loving politicians. And also then this Peratugamis (Front Line Socialist Party) and much despised anthare (IUSF) who destroyed our state university system and freedom of education in the name of free education. All of them in different degrees robbed us of our future, education, economy, health and careers. Let’s just keep them in our minds so we are sure not to vote them at the next election whichever day the election may come. Remember folks, the new era is the dawn of the much longed-for meritocracy run by progressive and committed statesmen-like lawmakers(not politician-minded) with professionalism, expertise, experience, honesty, and conscientious. We have been hoodwinked by all political parties innumerable times in our history, so do not get swayed by politics played in troubled waters. Always stand for what your conscience think is right for the country and for the common good of all people.
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