Following months of public protests against the Government, more specifically the former President Gotabaya Rajapaksa and the political dynasty, Rajapaksa fled the country making history as the first President in Sri Lanka to do so. The unexpected turn of events from him fleeing the country leading to his resignation will most inevitably be a prominent event in constitutional history.
First time in history?
The resignation of Rajapaksa came after he fled the country and marks the very first time in Sri Lankan history that a President was forced to resign; handing over his letter of resignation under Article 38 (1) (b) of the Constitution being unable to serve his term.
In Sri Lanka’s political history, the only instance that the office of President became vacant in accordance to Article 38 (1) (a) of the Constitution was upon the assassination of Ranasinghe Premadasa in 1993 and according to the Constitution of Sri Lanka, D.B. Wijetunga who in his capacity as Prime Minister at the time functioned in this capacity until he was elected by Parliament to the office of President under Article 40 of the Constitution.
Confusion about the letter of resignation
Although Rajapaksa informed the Speaker of Parliament, Mahinda Yapa Abeywardena that he would hand over his letter of resignation on 13 July, this was delayed until 14 July when the letter of resignation containing his signature was sent to the Speaker, hours after he fled to Singapore.
According to Article 38 (1) (b), the office of the President shall be vacant under if he resigns his office by a writing under his hand addressed to the Speaker, thereby as the letter of resignation was received by the Speaker by way of an e-mail, the Speaker’s office issued a statement observing that an official announcement in regard to Rajapaksa’s resignation will be issued the following day (15) after the legality and the legitimacy of the letter is assessed.
Thereby, Abeywardena on Friday announced the official resignation of Rajapaksa and observed that the constitutional provisions relevant to the appointment of a President will be applicable from the time of resignation.
He added that until such time, the powers and duties of the President will be exercised by the Prime Minister and Acting President Ranil Wickremesinghe while noting that Party Leaders have been informed of the need to appoint a President in accordance to Presidential Elections (Special Provisions) Act (No.2 of 1981) and Article 40 of the Constitution.
Attorney-at-Law Suren Fernando citing 40(1) (a) of the Constitution said, if the office of the President becomes vacant prior to expiration of his term, Parliament must elect an MP to be President for remainder of the term.
According to Article 40 (1) (b), such election shall be held as soon as possible after and in no case later than one month from, the date of, occurrence of the vacancy.
Such election shall be by secret ballot and by an absolute majority of the votes cast in accordance with such procedure as Parliament may by law provide: Provided that if such vacancy occurs after the dissolution of Parliament, the President shall be elected by the new Parliament within one month of its first meeting.
Citing, Article 40(1) (c) of the Constitution, Fernando said during the period between the occurrence of such vacancy and the assumption of office by the new President, the Prime Minister shall act in the office of President and shall appoint one of the other Ministers of the Cabinet to act in the office of Prime Minister: Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the Speaker shall act in the office of President
Further, he said according to Section 4 of the Presidential Elections (Special Provisions) Act (No.2 of 1981), the occurrence of a vacancy in the office of President shall, when Parliament has not been dissolved, 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.
According to Section 5 of the same Act, when Parliament meets in pursuance of section 4, the Secretary-General shall inform Parliament that a vacancy in the office of President has occurred. He shall fix a date and time at which nominations shall be received by him being a date not earlier than 48 hours and not later than seven days from the date of such meeting.
Further, according to Section 6 (2) of the Act, a member who wishes to propose any other member for election to the office of President shall obtain prior written consent of the member whom he wishes to propose indicating that such member is willing to serve if elected.
According to Section 6 (4) of the Act, if only one member be so proposed and seconded to the office of President he shall be declared by the Secretary- General to have been elected to such office. If more than one member be so proposed and seconded, Parliament shall, subject to subsection (2) of section 3, fix a date and time for the holding of the election, such date being a date not later than forty-eight hours from the time of receiving nominations.
Fernando noted thereby that the process of appointing a new President would take up to a week.
Previously, Abeywardena said nominations to appoint a President will be called on 19 July, after summoning Parliament on 15 July to announce President Gotabaya Rajapaksa’s resignation following which a President will be chosen on 20 July.
The Attorney General also previously informed the Secretary to the Prime Minister of the legal procedure that would follow with the resignation of President Gotabaya Rajapaksa.
He cited Rule 7 of the Standing Orders of Parliament, according to which, in the event a President to be elected in terms of Article 40 (1) (b) of the Constitution, the Parliament shall follow the procedure specified in the Presidential Election (Special Provisions) Act, No. 2 of 1981 to conduct the secret ballot using ballot papers
Fernando citing Article 37 (1) of the Constitution stated if the President is of the opinion that by reason of illness, absence from Sri Lanka or any other cause he will be unable to exercise, perform and discharge the powers, duties and functions of his office, he may appoint the Prime Minister to exercise, perform and discharge the powers, duties and functions of the office of President during such period and may also appoint one of the other Ministers of the Cabinet to act in the office of Prime Minister during such period:
Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the President may appoint the Speaker to exercise, perform and discharge the powers, duties and functions of the office of president during such period.
This appointment fuelled further anger amongst the public who protested opposite Wickremesinghe’s office in Flower Road.
Meanwhile, the Bar Association of Sri Lanka (BASL) observed that in a backdrop of President Rajapaksa previously informing that he would step down on13 July , the announcement made by the Speaker of Parliament last that Prime Minister Ranil Wickremesinghe has been appointed as Acting President has resulted in confusion and uncertainty among the members of public.
“The People of Sri Lanka had a legitimate expectation for an announcement of the resignation of President Rajapaksa as communicated by him to the Speaker and the Prime Minister. While there were reports of the President leaving the country, the letter of resignation or even the exact time at which it could be expected was not communicated to the public,” the BASL said.
The legal fraternity raised concern on the order issued by the Prime Minister and Acting President Ranil Wickremesinghe to the Police to impose a curfew within the Western Province followed by a declaration of a state of emergency under the Public Security Ordinance before he was officially announced to be appointed as Acting President in accordance to Article 37 (1) of the Constitution.
However, Abeywardena later officially announced the appointment of PM Wickremesinghe as Acting President as communicated by former President Gotabaya Rajapaksa following which lawyers assured there is no legal impediment in the imposition of curfew or declaration of a state of emergency.
BASL noted that these different communications, however, did result in confusion and uncertainty amongst the members of public.
By Faadhila Thassim