People, take care!

By Maduranga Rathnayake

(December 09, Melbourne, Sri Lanka Guardian) Whatever the good intentions of the common candidate, and/or those back him, may be, that is any way how all common and uncommon candidates had started their candidacy in the past, sadly and dangerously the common candidate is already expected, by the common opposition, if elected, to be dictatorial; that would be the common candidate President’s very first job.

Caretakers

The publicly announced arrangement, if they are serious, is to form a caretaker government if the common candidate becomes the President. The present Parliament will stand dissolved in April 2010 upon the expiry its term of six years unless it is dissolved prior to that date. The common candidate President can either dissolve the parliament immediately, meaning before the expiry of the Parliament’s term, or wait till the expiry of its term. If he dissolves the Parliament immediately, it would be his first act of dictatorship which would be more or less, and definitely in the light of the fact that parliament’s tenure after one year of its election largely and practically is during the pleasure of the President, similar to the dissolution of the then almost two–and-half year old Parliament, that was Wickramasinghe government, in 2004; the only difference being that the present Parliament is at its tail-end.

If, by the common candidate President or the expiry of its term, the Parliament is finally dissolved and a parliamentary election is declared, under the Constitution the Cabinet of Ministers “...notwithstanding such dissolution shall continue to function...” until the conclusion of the election, unless any Minister resigns or is removed by the President. In the event of all the Ministers including the Prime Minister cease to be Ministers then the President is required to “exercise, perform and discharge the powers, duties and functions of the Cabinet of Ministers” until the conclusion of the election.

Scenario I- the common candidate becomes the President and the Parliament is not dissolved immediately. The incumbent Cabinet of Ministers are most likely to immediately resign for practical and personal, as opposed to legal, reasons. Then the common candidate President would be forced to appoint his own Cabinet of Ministers and a new Prime Minister who, in this situation, would not necessarily command the confidence of the majority in Parliament. The JVP might wish to quickly have the ex-Chief Justice or some other citizen of their choice, the UNP having declared to stay out of any such arrangement, enter Parliament on the National List and make him the new Prime Minister. It is this Cabinet of Ministers which then might function until the conclusion of the parliamentary election, which would, perhaps, be called a caretaker government though such a highly manoeuvred set up would be far from a caretaker government. Thus, the common candidate President would be forced, unless he willingly agrees, to abuse his powers.

Scenario 2- the common candidate becomes the President and the Parliament is dissolved immediately. If, by any chance, the incumbent Cabinet of Ministers did not resign, then the common candidate President would be forced, unless he willingly acts, to remove the incumbent Cabinet of Ministers, thus being overbearing at the very outset, and appoint a new Cabinet of Ministers. The other option for the common candidate President would be, as per the Constitution, to discharge the functions of the Cabinet of Ministers until the conclusion of the parliamentary election.

At this point in the process, can the common candidate President appoint a caretaker government? Firstly, the Constitution does not provide for a caretaker government and such a thing is unthinkable much as it is unconstitutional. Secondly, the parliament being dissolved, there will be no sitting members of parliament who could or be appointed to form a caretaker government. In this situation, the common candidate President might be forced, unless he willingly acts, to extra-legally form a so-called caretaker government. There is certainly bound to be disastrous consequences, in addition to its legitimacy and legality, if this so-called caretaker government is to give directions and/or intervene in the affairs of the Commissioner of Elections and other key public officials during the parliamentary election.

Demissionary Cabinet

Some similarity, at least conceptually, is seen between the De-missionary Cabinet (demissionair kabinet) during elections to the Netherland’s Staten-Generaal (parliament) and the provision in our Constitution that allows the Cabinet of Ministers to function, despite dissolution of Parliament, until the conclusion of parliamentary election. What is expected of the Cabinet of Ministers during the parliamentary election, read with the powers of the Commissioner of Elections, is to function in a demitted way. In other words the incumbent Cabinet of Ministers should and could function as a Demissionary Cabinet.

The common candidate must realise one thing; that is, if he is elected, he is elected by the people and the moment he is sworn in as the President of the Republic he is bound by the provisions of the Constitution, whatever private agreements he may have had with others. What he must do is to invite the incumbent Cabinet of Ministers to function as a caretaker government or if the incumbent Cabinet of Ministers resigns, appoint a new Cabinet of Ministers which would continue to function as a Demissionary Cabinet until the conclusion of the parliamentary election. He must rely on his own prudence and not be coerced by other elements.

-Sri Lanka Guardian