16 July, 2024

Blog

That Abstention Vote

By Nihal Jayawickrama

Dr Nihal Jayawickrama

It has been reported that at a meeting of the Constitutional Council held a few days ago,

the nomination made by President Wickremesinghe of Deshabandu Tennakoon for appointment to the office of Inspector-General of Police was approved, and Tennakoon was accordingly appointed. However, it has also been reported that the Leader of the Opposition, Sajith Premadasa, has claimed that the appointment was made in violation of the Constitution and without the necessary approval of the Constitutional Council. The Speaker, on the other hand, has asserted that, at the meeting which he chaired, the number of votes required for approval of the nomination, namely five, was obtained.

The Constitutional Council is a ten-member body. Its members are the Prime Minister, the Speaker, the Leader of the Opposition, four other members of Parliament, and “three persons of eminence and integrity who have distinguished themselves in public or professional life, and who are not members of any political party”. The Speaker is the Chairman of the Council.

In respect of the office of the Inspector-General of Police, the Constitution states that no person shall be appointed to that office unless the person recommended by the President has been approved by the Council. The Constitution further states that, while the Council should endeavour to make a unanimous decision, no decision of the Council shall be valid unless it has been supported by no less than five members who are present at such meeting. The Constitution adds that the Speaker, as Chairman of the Council, shall not have an original vote, but may, in the event of an equality of votes, have a casting vote.

According to the Leader of the Opposition, four members of the Council voted to approve the President’s recommendation, while two members (including him) voted against. Two members abstained. That would have meant the rejection of the recommendation. However, according to Mr. Premadasa, the Speaker then cast his vote in favour of accepting the recommendation. The question then arises: in what capacity did the Speaker vote?  He did not have an original vote, but only a casting vote in the event of a tie.

According to newspaper reports, the Speaker has claimed that he exercised his casting vote since the Council was divided, four to four. Although only two members voted against, the Speaker appears to have considered the two abstentions as also two additional votes against, thereby creating a tie, and thus enabling him to exercise his casting vote to secure the majority required to approve the President’s recommendation.

The Constitution does not state that a member who abstains from voting should be regarded as having voted against. If a member has abstained from voting, it means that such member has not cast his/her vote. There is no vote to be counted, either for or against. Moreover, a member may refrain from voting for a variety of reasons, one of which could be a personal relationship or family connection with the person whose appointment is being considered. In such circumstances, a member who would ordinarily have voted for, not against, would have abstained to avoid any appearance of impropriety.

As far as I am aware, in parliamentary practice and procedure, here or elsewhere, a member who has abstained is never deemed to have voted “No”. Abstaining means not voting on a particular Bill or proposal, and a member’s decision to do so is recorded in Hansard as that member having “abstained”. In the UN Security Council, if a permanent member State’s decision to abstain on a critical resolution is deemed to be a negative vote, the consequences would be horrendous because it would constitute a veto, and the result would be the opposite of what that State intended.

If the Speaker purported to exercise an original vote to ensure the approval of the President’s recommended nominee, he would have been acting contrary to the Constitution which expressly denied him an original vote. If he purported to exercise a casting vote, the scenario that he created to enable him to do so was not only unconstitutional, but also unreal and even hilarious.

*Dr Nihal Jayawickrama, LL.B (Ceylon), Ph.D (London) is a former Permanent Secretary to the Ministry of Justice, who also served briefly as Attorney-General. He taught Comparative Constitutional Law at the University of Hong Kong, and at the University of Saskatchewan in Canada where he occupied the Ariel F. Sallows Chair of Human Rights. He is the author of The Judicial Application of Human Rights Law, (Cambridge University Press, 2002, 2nd ed.2017, 1200 pp.).

Print Friendly, PDF & Email

Latest comments

  • 1
    17

    The last word somes it all up!

    • 2
      16

      *sums (b4 the grammar nazi start attacking)

      • 16
        0

        How paranoid can one be!

        • 1
          11

          Inability to appreciate sarcasm is a perceptual handicap.
          .
          I can see that you’ve got a few under your belt.
          .
          BTW that thing about lightening, you got that one mixed up too… can’t be bothered to trace the thread, so I thought might as well let you know it here…
          .
          Now go have the last word, that you are so desperate to have… I can’t be looking for tissues…
          .

    • 11
      0

      Ruchira,
      .
      Never mind the grammar/orthography!
      .
      What do you find “hilarious”? The Speaker’s actions or Jayawickrama’s writing?
      .
      Panini Edirisinhe

      • 3
        10

        Panini – The whole saga, including th Speaker’s actions and interpretation of the law and the constitution. What else?

        • 9
          0

          “Interpretation of the law and the constitution”
          Welcome sign of NEW LUMINARY in LEGAL and CONSTITUTIONAL AFFAIRS of “HILARITY”!!??
          WONDER WHETHER, ‘SARCASM at its PEAK’!? If so looking forward commencement of “DOWNWARD SPIRAL”!?
          Very Exciting Thoughts indeed!!

      • 11
        0

        SM is in no mood to play naive, anymore ( no pun intended ). Way to go.

  • 14
    1

    What more and what else could and should One expect, when the place is filled with Grade 4 educated legislators, specialising in ‘gold chain snatching’ on South coast trains, murderers and convicted by courts – deep south, Bribe takers and looters all over, before forgetting, coconut robbers from Northwest who are specialist on Coercion of their electorate and subjugate for their personal profit!!??
    My contention is, that The Most Honourable Speaker elected by those DECORATED PERSONAE, wouldn’t have any different disposition!!??
    We must change constitution that speaker of H of R (Parliament) must be directly elected by the entire electorate at the time Parliamentary Elections!!!??? Then we may end up with a SPEAKER, who may not belong or affiliated to Party in Power (PiP), the above abbreviation, isn’t to relate to any other CONNOTATION of whatever description, except ease of reference!!??

    • 2
      0

      “We must change constitution that speaker of H of R (Parliament) must be directly elected by the entire electorate at the time Parliamentary Elections!!!??? Then we may end up with a SPEAKER, who may not belong or affiliated to Party in Power (PiP)”
      Another blunder like elected “Execrative President”.

  • 21
    1

    To hell with the speaker …….. what else can you expect? ……..He is just a shameless parasite ……… doing service for himself ……. not for the country or the people.

    What’s incredulous is ……. people even at this stage …… after 76 years ……. seem not to know that!


    Speaking of parasites ……. something’s afoot ……. in Ranil’s dirty tricks arsenal ……. of course for the benefit of the country/people no doubt ………


    Sinhala_Man,

    I do not support the JVP/NPP …….. but want them to have a fair go in this election as much as all the other contestants. ……… And for Chrissakes man …….. I don’t want to get ensnared in all your other crazy bullshit ……

    You have some contact with the JVP/NPP.

    Ranil is scheming to throw mud at the JVP ……… with the Phottuwa around him, he has the best resources/talent/team behind him ……… that he never had before.

    AKD is brilliant here ………. https://www.youtube.com/watch?v=GlmmtUDG3Iw ……. but Ranil’s efforts should be overwhelmed and drowned/neutralized with a daily barrage from the rest of the JVP who have the gift of the gab ……. and also from some of the photogenic young ladies: keep the visually-challenged and the verbally-challenged behind the scenes ……. It should be a targeted well organised and choreographed effort to discredit the dirty trickster Ranil. JVP can’t be amateurish here …….. they gotta go with some professional help ……. with all media-propaganda guns ablaze ……. start with asking if Ranil is going to apologize for Gonawala Sunil …. Sotthi Upali …… Native Vedda …… et al

    • 16
      1

      cont

      Shine a light on Ranil’s dirty past: don’t let him and his nice Uncle get away. …….. The great advantage the JVP has, unlike Ranil, they don’t have to resort to lies. There is ample truth out there for them to target Ranil and bury him in an avalanche ……. so he spends most of his time defending himself instead of attacking others.


      Sorry Native ……… what’s good for the goose is good for the gander ……… upper-crust Ranil has got used to always having his own way: when he discredits/throws-mud, it sorta sticks ……. but not this time …… let him have a good dose of his own medicine ….. I’m sure you’ll enjoy as much as ………. Gunduvindu :)))

      Fun and games all around …… why only you should own Ranil ……… share with ol’ Gundu ……….

  • 16
    0

    The Constitutional Council at present is not constituted properly. There should be a place for Tamil person of good standing, bringing the total number 11.
    Ideally it should not have ANY politicians.
    What is the delay in the appointment for the 11th person in the C Council

    • 9
      0

      Still seeking, whether it should go to SPLINTER GROUP of SLPP or TNA!?
      The problem which has been at the bottom OF ALL EVILS since Independence in 1948!!!??? HOW TO SIDELINE TAMIL REPRESENTATION!!??
      KEEP IT CLAEN!!?? “PANSINHALA”!?
      AGREE FULLY, POLITICIANS OUT!! EVEN LATE, “EAGLE EYE”, WOULD HAVE BEEN BETTER, as he had BETTER RATIONALE, though at times skewed by unwarranted, irrelevant Tamil Cast considerations!!??

  • 12
    0

    The Constitutional Council of ten members comprised of Speaker…………….and three persons of eminence and integrity who have distinguished themselves in public or professional life”.

    According to the voting results “two members abstained” and one was absent. Those two abstained were of the three “Eminence and Integrity……..” What “Eminence and Integrity” are those qualities that cannot make a firm decision on such a public interest matter of selecting a person to be IGP? The worst is one such person of “Eminence and Integrity” not to attend the meeting.

    Now the question before the PEOPLE is: – Should we continue to have such “FUNK STICKS” and “IRRESPONSIBLE” persons of “Eminence and Integrity” to be in a PEOPLES’ BODY (representing the mandate of the People, for the People and by the People) that cannot make firm decisions (moral and legal) and attend such crucial meetings? Let the PEOPLE decide, YES or NO.

    • 3
      0

      Hello Douglas,
      I have sat on a few Local Government Committees back in Scotland. First of all regarding abstentions – “Abstentions do not count in tallying the vote negatively or positively; when members abstain, they are in effect attending only to contribute to a quorum. “
      So 4 in favour and 2 against means that you have not reached the required 5. There is no tie so a casting vote cannot be used. The motion fails. The decision is against the rules, so what are the rules on contesting a decision – Supreme Court?
      Best regards

      • 6
        0

        LankaScot: Thank you. In my view, it is futile to discuss, Law and Order; Morality and Justice; Responsibility, and Accountability; and such other Judicial matters with a set of Bastards (you know how Plato used that word) who runs the Governing functions of this country.

        In the first place, this criminal, Senior Deputy Inspector General – Deshabandu Thennakone, who was declared by the highest court – the Supreme Court for violation of a person’s Human Rights in custody should never have been kept on duty at the Police Department. In that decision, the SC recommended to the Police Commission to institute disciplinary action against this convict. That PC (again an Independent body of persons of Eminence & Integrity) kept silent and allowed the President to appoint him to be the Actg. IGP. The President (the Executive of the country who has pledged by oath to uphold the Constitution and Rule of Law) ignored the ruling of the SC and appointed him first to act in the post and now connived with another body of “Persons of Integrity & Eminence”- CC, to confirm him as the Inspector General of Police.

        That is why I said, let the PEOPLE decide and bring this RING of bastards to book and put them behind bars. That is the way to go.

      • 11
        0

        LS,
        Fully agree with you. Why have a speaker, as SPEAKER, who doesn’t understand the Modalities of Voting and outcome of results thereof!? All this “SCREW-UP” is because all the 225 are 4th Standard educated, sorry to say, including Luxman Gamini, who started counting abstentions as “VOTE AGAINST” Resolution/Motion with UNHRC vote to satisfy his political existence (self-serving) as Foreign Minister, to be subservient to The Messiah, of Impunity!!!???
        So the SPEAKER ELECTED UNANIMOUSLY OR DIDVISVELY BY THOSE DELINQUENT 225, CANNOT BE ANY BETTER!!! SHOULD BE WORSE!!?? The last man standing ineligible for a Cabinet Minister, Deputy Post!!!???
        That has been proved beyond doubt!!???
        QED!!!

  • 6
    0

    “The Constitutional Council is a ten-member body. Its members are the Prime Minister, the Speaker, the Leader of the Opposition, four other members of Parliament, and “three persons of eminence and integrity who have distinguished themselves in public or professional life, and who are not members of any political party”. The Speaker is the Chairman of the Council.”
    It is clear from the above statement It is 10 member body. They include Prime Minister (Govt), Opposition leader (Opposition) Speaker (Government) and four other members of parliament (not clear about whether they are members of Government or Opposition) and three non political). If we exclude Speaker from voting what should be the number? It should be 9. Then the middle number should be 4.5. Do we know why those two abstendies did not vote? Are they living in the world? Can’t they send a postal vote/ What action was made chariman to get their votes? Are they still available to cast vote? What was the urgency for speaker to vote? Confusing Constitution created for political drama!

    • 7
      0

      Ajith,
      “Then the middle number should be 4.5.”
      Not the middle number that counts!? There is no half vote eligibility!
      Simple majority should be 5 to pass the motion in a committee of Nine. In your parlance, middle number, (4.5) towards the closest integer!! It would be 5!!?? That is the reason, committees, councils constituted with ODD numbers as otherwise, there would be TIES!!
      “Do we know why those two ‘absentees’ did not vote?”
      That would be numerous including personal ones and may not be disclosed!! As is the case of the SC and appellate court Justices, “Recusing” themselves of hearing certain cases?

      • 1
        0

        I know that odd numbers are used in decision making to decide in competitions to avoid “Ties”. The three members are included with the assumptions that they will do their job without political influence. I don’t know how the 4 members of parliament are allocated. I understand one of the members is not yet allocated. So, there are only 8 members now. According to voting 4 yes and 2 Nos.2 did not vote. The chairman assumes that abstaining is NO vote, then it is a tie. The questions are:
        Does the Chairman have the right to vote?
        If Yes,Under what situation can the Chairman cast his vote?

  • 8
    0

    Whereas there may be valid and excusable reasons for members/ representatives of important bodies to abstain from voting on crucial issues, the more common reasons may be ascribed to the lack of moral courage, and/ or the compulsion to run with the hare and hunt with the hounds due to being motivated by self-interest. Like how the Indian delegation was absent when a resolution against Sri Lanka was put to the vote at the UNHRC, not too long ago!

    • 9
      0

      I read up to the last comment and no one asked why the membership allocated to minorities was never filled.???? Sumanthiran and Sanakiyan had raised this issues in the parliament few times, to no avail. Only if that position was filled ??? I had brought his matter few weeks ago for discussion.

      • 7
        0

        Chiv,
        The Operative Word to GO by is UTTER POLITICAL Manipulation!!?These GLORIFIED Asses, attribute all kinds of reasons to it; The possible, The Impossible, The Unwanted and Unwarranted!!?? Keep the POWER SOLELY WITHIN!!!??? Point is WHEN IT EXPLODES, it is normally, Ill-timed and devastates to SMITHEREN!!?? Apocalyptic Outcomes to Ground Zero!!??

  • 9
    0

    Chiv
    I did bring your point of the non appointment of the 11th person in the Constitutional Council.
    It is just another council that is supposed to act like a rubber stamp for the government’s actions. So is the position of Attorney General. Sad sad situation

    • 11
      0

      Naman , it’s a done deal. I was just highlighting the fact. Even if a minority was appointed, the government would have found a way to bypass the CC. That is what makes Sham Lanka special.

      • 0
        0

        Naman, THANKS.

  • 14
    0

    This is not the first time and it’s not going to be the last with this Speaker. He is a SLAVE OF RANIL-RAJAPAKSA GANG. He has violated the constitution so many times and not only that he has violated other Govt laid down rules by employing his kith and kin to various positions under him. He thinks the Parliament is his boothale. He has no self respect, he is a CROOK, it’s time all law abiding MPs to boycott all Parliamentary sessions and Constitutional Council meetings and Party Leaders meeting as long as he is in the chair. Its time for this crook to resign.Unfortunately the Supreme Court is no better. It too is a biased decision making body.

  • 6
    0

    Part I
    The author in a paragraph of 4 lines succinctly describes the composition of the constitutional council as 10 members and it is a true reflection or the summary of article 41A of the Constitution. However, I note that the voting in the matter of “Sidhdhalepa” Tennakoon as IGP of this blessed isle, as stated in the article, there were 4 Ayes, 2 Nays, 2 Absteynen (Old English terms used sarcastically). With the Speaker the total attendees were 1+4+2+2 totaling to 9. What happened to the 10th member? Who was he/she? Was there something sinister in his/her absence? As a simpleton in law, I am curious to know who will chair the meeting of the council if the Speaker, Prime Minister, and the Leader of the Opposition fail to attend the meeting. My knowledge of Article 41E (2) is that the Chairmanship is limited to these 3 exalted offices and even if the quorum of 5 or more members (Article 41E(3)) are present then the meeting cannot be conducted. In my humble view, it is unfortunate that there is no provision for the members present to elect a chair if any of the three exalted members absent themselves.

  • 6
    0

    Part II
    Permit me to cite two hypothetical cases. The council receives a nomination for a particular appointment. The meeting of the council is attended by exactly 5 members which includes a person eligible to chair. Initially views of the members other than the chair matter and all four agree to the appointment. Then is it considered a unanimous decision in terms of Article 41E(4), noting that there are only 4 recorded agreements are there?. Now take the second example where the meeting is attended by 6 members including a person eligible to chair. Initially views of the members other than the chair matter and four agree for the appointment and one against. Since there is no “equality of votes” as per Article 41E(5) a casting vote is not applicable. There is no unanimity. Must then the appointment deemed not approved as it does not meet the minimum number of votes required in terms of Article 41(E)? I trust the readers can see through the absurdity created by these articles in citing these two cases. I don’t expect the ludicrous situation where the presiding member states that I too agree to the appointment and hence the appointment is through.

  • 7
    0

    Part III
    Academic aspects apart, what matters to observers like us is that the money power operating in British Virgin Islands and Cayman Islands. “Sidhdhalepa” Tennakoon is the ideal candidate as he serves the interest of those in financial power can be. Social media records of “Santhosam” paid by Spa owners and collected by police officers and how that money is divided. Who were behind the attempted heist of the money found in the Presidential Palace left behind when Prez Gotabhaya fled? Everyone knows that “Equality of votes” in terms of Article 41E(5) means the equality in number of “Ayes” and “Nays” and not the equality of “Ayes” and “Nays” plus “Absteynen”. Who was the brainwave behind that strange interpretation of “Equality of votes”? According to those knowledgeable, certainly not the Speaker MYA. In advance, the conspirators knew who would attend the meeting what the voting pattern and provided that cockeyed interpretation. In fact, all the dirty linen of those who hold political power are known to “Tiranical Forces” in charge of law and order now reduced to loo and odor. That is why that there is no option but to propose the acting appointment permanent. May God help!

    • 7
      0

      (Part I)
      GS,
      Fully agree with your analysis. This is the result of ‘APEY AANDUWA’ syndrome by those who GAINED ADMISSION ONLY to 4th Standard Education, unable to provide any educational achievements. Retards, who have not pursued any valid vocation or profession, masquerading as SAVIOURS!!!??? The Constitutional provision, reproduced below is very clear as crystal, nothing much left for Interpretation.
      CC 41A
      (4) ———–In the ABSENCE of a UNANIMOUS DECISION, no recommendation, approval or decision made by the Council shall be valid, UNLESS SUPPORTED BY NOT LESS THAN FIVE MEMBERS OF THE COUNCIL PRESENT AT SUCH MEETING.
      (5) The CHAIRMAN OR THE OTHER MEMBER PRESIDING shall NOT HAVE AN ORIGINAL VOTE, but in the EVENT OF AN EQUALITY OF VOTES (TIE) on any question for decision at any meeting of the Council, the CHAIRMAN OR OTHER MEMBER PRESIDING at such meeting, SHALL HAVE A CASTING VOTE!!!???
      VOTES 4 AYES, AGAINST 2 NAYS – NOT UNANIMOUS, AND “NOT A TIE”!!?? Therefore, as per above 41A (5) Chairman Presiding Officer INELLIGIBLE, PROHIBITED, TO CAST ANY VOTE!!??
      Motion disallowed – The appointment of IGP is Illegal and Inconsistent with CC provision as applicable.
      (TBC)

    • 7
      0

      (Part II)
      And the Sovereign people of Sri Lanka No matter what his qualifications or disqualifications other than that – is totally IRRELEVANT AND IMAMATERIAL TO THE CASE!!!???
      IGP, PLEASE STEP DOWN IMMEDIATELY, AS IT VIOLATES THE Constitution, which you to abide and uphold!!!
      Most Honourable, UNACCOMPLISHED Mr SPEAKER, recommend THE SAME remediation, IN RESPECT OF YOURSELF!!!??? To save your skin with whatever remaining HONOUR, so to say do so with SPEED!!!??? NOT UP to the EXPECTATION of the PUBLIC!!! STEP DOWN WITH HONOUR!!??
      MISTAKES ARE MADE, WHEN MADE AND POINTED OUT, MUST BE ACCEPTED AND REMEDIATION DONE Forthwith as accountability is utmost Importance – Public Life!!??
      An Aragalaya for this sordid culpability is superfluous, must be unceremoniously sent Home!
      In the end and in a Holistic Manner, would like to know, WHICH “GATEWAY Royal ENGLISH” MOOTED THE SPEAKERS INTERPRETATION to this sorry state of Affairs!!?? Institutionally Famous and Appropriate advice, which probably the Speaker Accepted as Genuine, turned out in the end Asinine!?

  • 7
    0

    (Part I)
    GS,
    Fully agree with your analysis. This is the result of ‘APEY AANDUWA’ syndrome by those who GAINED ADMISSION ONLY to 4th Standard Education, unable to provide any educational achievements. Retards, who have not pursued any valid vocation or profession, masquerading as SAVIOURS!!!??? The Constitutional provision, reproduced below is very clear as crystal, nothing much left for Interpretation.
    CC 41A
    (4) ———–In the ABSENCE of a UNANIMOUS DECISION, no recommendation, approval or decision made by the Council shall be valid, UNLESS SUPPORTED BY NOT LESS THAN FIVE MEMBERS OF THE COUNCIL PRESENT AT SUCH MEETING.
    (5) The CHAIRMAN OR THE OTHER MEMBER PRESIDING shall NOT HAVE AN ORIGINAL VOTE, but in the EVENT OF AN EQUALITY OF VOTES (TIE) on any question for decision at any meeting of the Council, the CHAIRMAN OR OTHER MEMBER PRESIDING at such meeting, SHALL HAVE A CASTING VOTE!!!???
    VOTES 4 AYES, AGAINST 2 NAYS – NOT UNANIMOUS, AND “NOT A TIE”!!?? Therefore, as per above 41A (5) Chairman Presiding Officer INELLIGIBLE, PROHIBITED, TO CAST ANY VOTE!!??
    Motion disallowed – The appointment of IGP is Illegal and Inconsistent with CC provision as applicable.
    (TBC)

  • 3
    0

    A good analysis by Jayawickrema..

  • 3
    0

    Dr. Nihal.J. has caught the Speaker with his Pants down.

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 5 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.