By Reeza Hameed –

Dr. 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.