By Reeza Hameed –
The popular uprising against the Rajapaksa regime started with the demand for the resignation of President Gotabaya Rajapaksa and the then Prime Minister Mahinda Rajapaksa. Mahinda Rajapaksa to his credit saw the writing on the wall and quit, but Gotabaya Rajapaksa did not. The President appointed MP Ranil Wickremesinghe who entered Parliament through the nominated list to fill the vacancy caused by Mahinda Rajapaksa’s resignation, inviting the people’s ire against Ranil Wickremesinghe as well.
The people took to the streets on 9 July demanding the resignation of both Gotabaya Rajapaksa and Ranil Wickremesinghe storming the President’s House and the Presidential Secretariat. Gotabaya Rajapaksa went into hiding.
According to a BBC report of Monday 11 July, Prime Minister Ranil Wickremesinghe‘s office said in a statement it had been informed by Mr Rajapaksa that he would step down on Wednesday 13 July. The Speaker told the BBC on Monday 11 July that the President had left Sri Lanka and was in a nearby country and that the latter would submit his resignation on 13 July. The Speaker later retracted his statement made to the BBC that the President had left the island.
In the meantime, as was reported, the party leaders met to reach agreement on finding a replacement for Gotabaya Rajapaksa whose resignation was expected on 13 July. Gotabaya Rajapaksa did not resign on 13 July as he had promised. On that day, the Speaker made an announcement that Gotabaya Rajapaksa had left to a nearby country and that Gotabaya Rajapaksa, acting under Art 37(1) of the Constitution, had appointed the Prime Minister Ranil Wickremesinghe to act for him.
Under Article 37(1) the President may appoint the Prime Minister to exercise the powers, duties, and functions of his office. He may make the appointment if he “is of the opinion that by reason of illness, absence from Sri Lanka or any other cause he will be unable to” exercise them himself. An appointment under this article of the constitution does not result in his resignation. For a vacancy to arise under Article 38(1) of the constitution, the President will have to tender his resignation from his office in writing to the Speaker. Instead of sending his resignation, he has absconded.
Appointment has to be temporary
The appointment of Prime Minister Ranil Wickremesinghe as acting President was by a gazette extraordinary No 2288/19 of 13 July 2022.
The gazette extraordinary gives the President’s reason for the appointment as “my absence from Sri Lanka” and that Prime Minister Ranil Wickremesinghe will exercise the powers duties and functions of the office of President “during such period of my absence from Sri Lanka.” The word “period” carries with it the notion of a length of time. The phrase “during such period” implies that the appointment has to be time specific, but there is no mention in the gazette extraordinary of the period for which the appointment has been made; “absence from Sri Lanka” is the reason for the appointment, not its duration. In order for the phrase “such period” to make sense, the gazette must mention a time period. It did not.
The appointment under Article 37(1) cannot be for an indefinite duration. It must be time specific. It is meant to fill a temporary absence abroad.
That the appointment under Article 37(1) has to be temporary is reinforced by a reading of Article 37(2) under which the Prime Minister may be appointed to act for the President if the Chief Justice is of the opinion that the President is temporarily unable to exercise the duties and functions of his office, and is unable to make an appointment under Article 37(1). In that case the Chief Justice may communicate his opinion to the Speaker, leading to the temporary appointment of the Prime Minister to act in place of the President during such period. It should follow that where the President is able to make an appointment, it should be a temporary appointment.
Differences of opinion may arise as to what is meant by “temporary” but, if the period is not specified, it is not possible to say whether the appointment is temporary.
No one knows for certain as to where the President is now or for how long he would be away from the country. The president of the country simply can not go away indefinitely, even if he appoints another to act in his place. His whereabouts cannot be a secret.
Gotabaya Rajapaksa has deserted his office and made himself incapable of exercising the duties and functions of his office. By his own admission, by going abroad, he has rendered himself unable to perform the functions of his office. In any other situation, a person who goes into hiding and is not available to discharge his functions would be deemed to have vacated his office.
By going into hiding the President has intentionally violated the constitution. Going into hiding is not one of the reasons for making an appointment under Article 37(1).
It is not known whether, and if so when, Gotabaya Rajapaksa would return to Sri Lanka. It is possible that the President may not return to Sri Lanka at all during the term of his office, as a member of the United Kingdom Parliament has on 13 July called for an international arrest warrant to be issued for the arrest of Gotabaya Rajapaksa.
In the final analysis, a president is required to be physically present in Sri Lanka to be able to effectively perform the functions of his office. He was elected to office, and the mandate given to him by the electorate is personal.
He is responsible to Parliament for the due exercise of the powers, duties, and functions of his office. As a member of the cabinet, he must attend cabinet meetings to discuss and decide on important matters of government policy. He has taken an oath of office to uphold the constitution, and that oath is not suspended, simply because he has appointed someone to act for him.
He cannot discharge his responsibilities under the constitution by laying on his back somewhere nobody knows or by sitting behind a laptop. The fact that he has to go into hiding in an unknown country is an indication that he cannot rely on his own service chiefs to guarantee his safety. Gotabaya Rajapaksa has effectively made himself a lame duck of a President.