By Reeza Hameed –
When the Office became vacant
On 13 July 2022, Gotabaya Rajapaksa fled from Sri Lanka under cover of darkness to an unknown destination. Even before his departure he had been in hiding. On the day he left, the country was informed that Gotabaya Rajapaksa had appointed Prime Minister Ranil Wickremesinghe as his stand-in during his absence abroad.
The reason that Gotabaya Rajapaksa gave for the appointment was that by virtue of his absence abroad he was unable to discharge the powers, duties, and functions of his office. In fact, it was clear to everyone that he was unable to function as President even before he went abroad. On 9 July, he fled his official residence to some location unknown to the general public.
He went abroad because he was unable to function in his office. This was the actual reason as to why Gotabaya Rajapaksa appointed Ranil Wickremesinghe. Hence, the appointment does not fit in with Article 37(1) and is constitutionally questionable.
A vacancy occurred before 13 July by virtue of Gotabaya Rajapaksa’s desertion from office. By vacating his office, he would be deemed to have resigned from office on 11 July causing a vacancy to arise under Article 38(b) as of that date. When a deemed resignation occurs, it would be futile if not absurd to require a formal letter of resignation.
The Constitution provides, by Article 40, that where the office of President becomes vacant in terms of Article 38 (1) of the Constitution, Parliament shall elect as President one of its members who is qualified for election to the office of President, to hold office for the unexpired period of the term of office of the President vacating office.
The formal resignation that Gotabaya Rajapaksa promised to send on 13 July came in only on 14 July but even before that, by 11 July, Parliament had been acting as if there was in fact a vacancy. Following upon a meeting of the party leaders on 11 July 2022, without waiting for the letter of resignation to arrive, the Speaker issued a statement announcing that nominations for the next president will be presented to parliament on 19 July, and a vote will be taken on 20 July 2022. When on 13 July Gotabaya Rajapaksa appointed the Prime Minister to act for him, he had already left that office and was powerless to appoint anyone to act in his place. In lawyer’s parlance, he was functus officio.
Parliament is an electoral body
When the office of the President becomes vacant, Parliament will elect a President in terms of Article 38 (1) of the Constitution and in accordance with the provisions of the Presidential Elections (Special Provisions) Act No. 2 of 1981. Section 2 of the 1981 Act states: “The provisions of this Act shall apply when the office of President shall become vacant in terms of Article 38 (1) of the Constitution.”
Section 4 of the Act states: “The occurrence of a vacancy in the office of President shall … operate as a summoning of Parliament to meet within three days of such occurrence.” The Secretary-General of Parliament shall inform the members of Parliament of the date and time fixed for such meeting.
It is the Secretary General of Parliament, not the Speaker, who is responsible for conducting the election, functioning as the Returning Officer.
Parliament meeting to elect a president is not a legislative body exercising legislative power. It is an electoral body with the members of Parliament acting as delegates of the people. As delegates, they are bound to give effect to the wishes of the people. The people must be able to voice their wishes and give them instructions with regard to the choice of candidates and voting. The people must have a say in what their delegates will do on the polling day, and this requires the process to be open and transparent.
Amenable to Court’s Jurisdiction
The proceedings in Parliament relating to the election of the President are amenable to the jurisdiction of the Courts. The 1981 Act specifies the circumstances in which they may give rise to proceedings before courts.
Bribery and undue influence
Parliament when it enacted the 1981 Act was concerned that corruption could taint an election. This is evident from the provisions in the Act making every person who commits the act of undue influence of bribery guilty of an offence. A person convicted by a Magistrate may be liable to a fine not exceeding five hundred rupees or to imprisonment of either description for a term not exceeding six months or to both such fine and such imprisonment.
The Act prohibits and penalises such conduct to ensure that the election does not turn out as an auction giving the seat to the highest bidder. The Act further provides a remedy to challenge an election if there is proof of bribery or undue influence.
The Act allows a candidate or a member of Parliament to challenge the result in the Supreme Court on any of the grounds specified in section 19 of the Act. The grounds on which such a challenge may proceed are:
a) that the offence of bribery or undue influence at the election has been committed by the candidate who has been returned or by any person with the knowledge and on behalf of the candidate who has been returned; or
b) that the result of the election has been materially affected
(i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the candidate who has been returned nor a person acting with his knowledge and on his behalf; or
(ii) by the improper reception or refusal of a vote, or
(iii) by any non-compliance with the provisions of the Constitution or of this Act; or
(c) that the nomination of any candidate has been wrongly rejected.
An election petition may be presented by any candidate at such election or by any member of Parliament. It may be presented at any time after the date of publication of the declaration of the result, but not later than thirty days from the date of such publication.
As Parliament in electing a President will not be functioning as Parliament stricto sensu but as an electoral body discharging a statutory function, breaches of any of the duties under the Act may be enforced by invoking the fundamental rights jurisdiction of the Supreme Court under Article 126 of the constitution and the writ jurisdiction of the Court of Appeal under Article 141 of the constitution. Such proceedings could for instance arise if upon a vacancy arising the Secretary General fails to take any of the steps, he must take under the 1981 Act.
Evidence of proceedings in Parliament may be produced before the courts in those proceedings. The provision in the Parliamentary Privileges Act, that proceedings in Parliament shall not be impeached or questioned in any court or place out of Parliament, has no application to the proceedings before the courts.
In lieu of a conclusion
The main parties have been engaging in negotiations behind closed doors giving the impression that the people have nothing to do with the election that is to take place. They should take the public into their confidence and inform the public about the discussions they have been having and the vision they have as to the future. They should also pay heed to the voice of the people.
Noor Nizam / July 19, 2022
These are just political games to make the “ARITHMETIC” of votes work for Ranil with the support of the SLPP.
Are these idiotic Party Leaders opposing Ranil not understanding “political democratic realities”.
In my opinion, these are all political dramas for the Media and press.
The best is to allow Ranil take over as President for the next 3 years without a “CONTEST”. I know that media will not publish this comment, but I still believe in the freedom of expression and opinion.
When all the groups opposing Ranil will vote their group blue-eyed candidate, RANIL will win very comfortably tomorrow. That will be the reality. With my 53 years of political engagement and experience and having being an SLFP/SLPP stalwart and an inner confidant of late Mrs. Sirimavo Bandaranaike, Member – Sudu Nelum (Chandrika) and Mahinda (Campaign activist and Senior Personnel, Office of the Spokesperson, Presidential Secretariat), as a political communications researcher, I am making this statement/comment with full responsibility.
Noor Nizam – Peace and Political Activist, Political Communications Researcher, SLFP/SLPP Stalwart, Convener “The Muslim Voice, Patriotic Citizen.
Ajith / July 19, 2022
Ranil is President tomorrow whether it is with election or without election.
Ajith / July 20, 2022
As I said, Ranil won. People changed but politicians did not change. Only change is Ranil President instead of Gota who is much stronger than Gota. Parliament now approved corruption is necessary and should be the priority to parliament. From now the government focus is how to improve the corruptions level by improving the debt amount.
ReginaldShamalPerera / July 19, 2022
Most of these Aragalaya fellas do not know the power of the Army. Either they have never received a kick from an Army boot or they have forgotten the meals they received in 1988-89.
I have an old pair of boots. I will put them on show any of you fellas the power of those boots god willing.
Sunil Abeyratne / July 20, 2022
In a democracy, security forces are at the command of the people. Not the other way around.
As for the power of the Army, shooting unarmed civilians is cowardice and it is a war crime.
The strength of an army is tested when fighting another army.
Army boots (intended to protect one’s feet) are paid for by the taxpayer and to kick civilians from the same boot is despicable.
ReginaldShamalPerera / July 22, 2022
That is in a Democracy and we are not one of those. Get over it. SL is no democracy. It’s an Army-state. It would a sight to behold when every Sri Lankan has combat experience. We could make countries like Bangladesh and Maldives pay for our well being.
And we don’t go kicking every Sri Lankan with our boots. Only those that truly deserves one.
Mahila / July 21, 2022
All’s well ?! Good as your ‘BOOT’???
VanguardII / July 21, 2022
The strength of courage is sometimes in not firing a shot. Some of us understand this.
ReginaldShamalPerera / July 22, 2022
If you have your finger on the trigger on one of those golden gadgets you’d be compelled to flick your finger until the cows come home. Don’t fool yourself.
bindu / July 20, 2022
Parliament has a role. They follow more roles than they are are assigned to. But my point is not the roles they play behind doors but their DUTY towards people of the country. If they find it difficult what is good and desirable for the well being of the present generation and the generations to come. History has always repeated and the promises has never been achieved for the benefit of the ordinary people. Of course the few who are occupying this guarded fortress, out of touch to the masses, look opulent, free, content with exchanging millions and billions between friends, contenders, occupiers of high and powerful places go on unabated. Justice system is made in a way it looks away when masses request for assistance but jumps into action on a whistle from the corrupt and the powerful. By following this mob has become billionaires un-known to the public and run the course of the country as they wish.
Duty of at least some of these elected people who have some sanity left, is to listen and understand the pleas of the Aragala participants, who had the unusual courage to show that there is a different path towards fishing out their country from the impending and definite fall into the abyss.
And also the Aragala needs to remind these mainly corrupt, selfish lot that their business is not over yet; come what may!
RBH59 / July 20, 2022
In fact, it was clear to everyone that he was unable to function as President even before he went abroad.
He escaped or fled abroad that why he was unable function when he does this this he himself does not reconized as president. Mrs Sirimavo bandaranake did not go a broad when there was country wide problem The runaway president seek power, success and wealth and escape and planted ranil for enreance.
Noor Nizam / July 21, 2022
This is what Excellency President Ranil Wickremasinghe should do (strong suggestion).
This should have been done In March 2022, when mass protests began in Sri Lanka against the government of President Gotabaya Rajapaksa. Gotabaya as the Commander-in-Chief of the armed forces should have given these orders/powers to the forces including the Police to stop the nonsense of these hooligans, drug addicts, drug dealers, thugs and the JVP/FSP politicians like Lal Kantha, Kumar Guneratnam, the IUSF Convener Wasantha Kumara Mudalige and former leader Lahiru Weerasekara who under the disguise of the “Freedom to Protest” supported and funded by the American Embassy in Sri Lanka, the UN and INGO’s used the “power of MOB behaviour which has plunged our “Maathruboomiys” to this chaotic situation politically and socially. Being said that- A lot of opportunistic and disgruntled politicians and business interests and religious dignitaries have contributed towards creating this disaster to “Mother Sri Lanka” our “Maathrubomiya”. All the corrupt government officials from the ranks of Grama Sevaka Niladari, Department Directors and Engineers, Divisional Secretaries, Asst. Secretaries and Secretaries of Ministries, School principals, Some elements in the Tri Forces, Statutory Board Members and Chairman’s and even Doctors (JVP) sympathizers have played their part in this great disaster because they felt that a “RIGID HAND” governance will bring them all to book before the “Rule of Law”.
Shan Shanmugavadivel / July 21, 2022
If an unelected person whose political party elected zero seat can be made an executive president, obviously there is big problem in the constitution, this man wanted strictly followed,
Bert / July 21, 2022
“I have an old pair of boots. I will put them on show any of you fellas the power of those boots god willing.’
You might be able to, I wont dispute that. One thing you army fellows don’t understand is that “Power” is subjective. It has different forms but you know only one. Now you know why we call all you guys 8-pass, irrespective of the rank.