Dr Reeza Hameed: Parliament’s role in electing the President

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 had 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: 

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 

that the result of the election has been materially affected

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

by the improper reception or refusal of a vote, or

by any non-compliance with the provisions of the Constitution or of this Act; or

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.

A president in hiding is no president

Dr Reeza Hameed: 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

The popular uprising against the Rajapaksa regime started with the demand for the resignation of President 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. 

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. 

Moreover, 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.

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.

Crisis in Sri Lanka: Lessons for Pakistan

Expert says political elite of Sri Lanka failed to reach consensus on how to run their country. Pakistan is not going to default on international loans, moot told

The Pakistan Institute of International Affairs (PIIA) organised a seminar on ‘Crisis in Sri Lanka: Lessons for Pakistan’ on Saturday. Introducing the subject, the PIIA chairperson Dr Masuma Hasan explained Sri Lanka is going through an economic crisis, which is said to be the worst crisis in the history of the country.

“There are food shortages, people are protesting. So there is both a humanitarian and political crisis. A couple of days ago, the Sri Lankan prime minister said that their economy has totally collapsed. They defaulted on their international loans,” she said, and added: “We decided to call this seminar because many here in Pakistan think that this country will follow the same pattern as Sri Lanka.” Dr S. Akbar Zaidi, the executive director of the Institute of Business Administration (IBA), Karachi, said he does not think that Pakistan was going to default on its loans. He said:

It’s highly improbable that we will … Right now the countries that have defaulted post-pandemic are Lebanon, Zambia and Sri Lanka. But here Pakistan is in an International Monetary Fund [IMF] programme, which Sri Lanka was not.

He further elaborated that Sri Lanka was a richer country than Pakistan, stating:

Poorer countries are given loans at a lower rate, but Sri Lanka was given loans on a higher rate … Still, default is not the end of the world, but it makes life very difficult as it gives way to unemployment and inflation and we are already there.

Dr Farhan Hanif Siddiqi, director and associate professor at the School of Politics and International Relations, Quaid-i-Azam University, Islamabad, said that the political system in Sri Lanka combined with ethnic and cultural issues caused a vicious cycle there. 

He also said that the political elite of Sri Lanka failed to reach consensus on how to do politics or how to run the country, which is also a big contributory factor in what is happening in Sri Lanka today.

“In 2015, their presidential system was changed into a parliamentary system. Then in 2020, they were back to the presidential system. Now, again they are calling for a parliamentary system. It does not go well with that nation,” he said.

“Even though the Tamil Tigers were defeated, the Tamil minority in Sri Lanka is an underlying problem. A younger generation might even mobilise themselves in the future. And when politics does not address the underlying conflicts, then they grow. We are facing a similar issue in our Balochistan,” he said.

Dr Jehan Perera, executive director of the National Peace Council of Sri Lanka, joined in through a video link to provide a better picture of what is going on in his country at the moment.

He said that just four years ago, Sri Lanka was called a middle-income country by the World Bank. Sri Lanka was also a great tourism destination. “But in the last three months, the value of Sri Lankan currency has fallen by 100 per cent. Now 70 per cent of our population eats less. Now, Sri Lanka is known as the seventh-most malnourished country in the world. It is being compared to Somalia.”

“In Colombo, we see enormous lines or queues for petrol and diesel at the pumps. People park their cars there for two days and more, and go home because there will be no fuel until there is supply. There is no gas to cook food. We do it on electric hot plates. The universities have been closed. Education has been shifted to online. There is a shortage of medicine even and we are thankful to Pakistan for sending us medicines. And the immediate blame for all that is happening in Sri Lanka has fallen on the current government. The people are angry. They feel terribly betrayed. They think that the country cannot import petrol, diesel, gas and medicine because it has run out of dollars. On May 9, there were riots where the people attacked the homes of ministers. It led to the resignation of the president, who was portraying himself as the king,” he said.

“The majority principal is entrenched in Sri Lanka, but we also have other groups such as the Sri Lankan Tamils and the Tamils who came here from India many years ago. They all speak Tamil, but the country’s language is Sinhala. When decisions are taken, the Sinhalese do not take the minorities into consideration. The Tamil language is spoken by three of the four communities in Sri Lanka, but the parliament made Sinhala our national language, which has also led to a sense of insecurity among the minorities. So many minorities in Sri Lanka also feel powerless as our army, too, is 95 per cent Sinhalese,” he explained.

Published in Dawn, 26 June 2022

‘Muslims are now considered internal enemies in India’

‘Hidutva is xenophobic’: Javed Jabbar argues Hindutva was fascism before Hitler and Mussolini

The Pakistan Institute of International Affairs (PIIA) recently held a seminar on ‘The Status of Minorities in India’ . Former Senator Javed Jabbar and academic Prof Dr Mohammad Waseem were two speakers who shed light on the subject. Speaking on the occasion, Javed Jabbar articulated his thoughts brilliantly by stating at the beginning that in India there’s ‘unclear majority that imperils clear minority’. He said the three concepts of Hindu, Hinduism and Hindutva are three distinctive, separate concepts. The word Hindu does not occur in any of the three sacred texts of Hinduism. For hundreds of years there was no concept of who is a Hindu because the people living in South Asia were driven by caste. 

At the same time, another odyssey began, which was the quest for Hindu identity because Hindus now had to decide ‘we have always been a majority, how do we now acquire power and become the ruling majority over the minority that has ruled us for 800 years.’ So out of the two odysseys, the Hindu one took a regressive turn.

He argued 1857 is normally considered the tragic end of Muslim rule. “Tragic yes, but it was the end of monarchical Muslim Mughal rule due to the callous murder of the two sons of Bahadur Shah Zafar by a British officer. When that happened, 800 to 900 years of certain conditioning of the Muslim psyche had to begin a new odyssey. ‘How do we now become a minority?’ He said:

Mr Jabbar said Hindutva is not a belief in Hinduism. It is very specific. You can only be a Hindu if your parents are Hindu or if you’re born in what they consider is Hindustan. “This was fascism before Hitler and Mussolini… Hindutva is not a product of the BJP-RSS extremism alone, it incorporates the latent covert trends running through a certain segment of India’s polity for several decades.

‘Hidutva is xenophobic’

Dr Mohammad Waseem, Professor of Political Science, Department of Social Sciences, Lahore University of Management Sciences, said elections mean that you count every citizen belonging to multiple cultures. Earlier majoritarianism in India was secular, but now it’s faith-based. The ghettoisation of Muslims has taken place in India because of the BJP. Muslims now tend to live and stick together. 

He pointed out that in India, Muslims are now considered internal enemy. As a result the minority is otherised.

Dr Waseem said that all of this has given birth to vigilante culture which is part of the neo-normal politics in India. Gao raksha incidents are an example. All nationalisms invent their sacred points. In India, the force of law has been converted into the law of force. A law enforcement agency like the police takes Hindus’ side, using the law of force against Muslims. “Muslims are labelled Pakistanis and Pakistan is enemy country.”

He said Hindutva is xenophobic in nature. Patterns of resistance have emerged, though, such as new generations of Muslims are now documenting what’s happening. He added Muslim future in India is far from right.

Earlier, Dr Masuma Hasan welcomed the guests to the seminar and introduced the speakers to them.

Published in Dawn 29 May 2022

A Step Back in Time: The Ukraine War’s Weight Over the Energy Question

On June 20, 2022, as Russian state-controlled gas provider Gazprom announced its decision to slash natural gas flows to its Western European clients via the Nord Stream pipeline to 40% capacity, Germany – followed shortly after by Austria and the Netherlands – took the decision to turn towards their coal-fired power plants to try to curb natural gas consumption. Of this policy measure, Germany’s economic minister Robert Habeck lamented that “[i]t [is] bitter but indispensable for reducing gas consumption.” Habeck’s statement was issued on June 19, amid fears of gas shortages vis-à-vis the continuation of the Russia-Ukraine crisis since February this year. Such a move, one might say, could be viewed as an exercise in self-reliance to reduce dependencies on gas imports. However, upon looking at the wider picture, it is difficult to shake off how Germany – the state that sought to lead the ‘green energy’ movement – is now compelled to re-consider its climate action ambitions win to the incumbent geopolitical developments. 

To better understand the implications of such measures through the center-periphery dichotomy, it is imperative to establish the context of the politics of natural resources in relation to the Russia-Ukraine crisis. Russia, the largest natural gas exporter in the world and home to some of the largest gas reserves, accounted for 45% of the European Union (EU)’s gas imports in 2021. Following the Russian decision to recognize the “independence and sovereignty” of the ‘Luhansk People’s Republic’ (LNR) and ‘Donetsk People’s Republic (DNR)’ regions of Ukraine in addition to Russia’s invasion of the stated territories, the United States (US) and EU instituted a series of coordinated sanctions in response to what was viewed as a belligerent move by Russian President Vladimir Putin. This sanctions regime was met by Putin signing a decree demanding payment of foreign gas to be made in rubles from 1^st April 2022. 

While Denmark, Finland and Poland have decried this decree as tantamount to blackmail, with Danish Prime Minister Mette Frederiksen lambasting that “[t]his is totally not acceptable… [and is] a kind of blackmailing from Putin,” countries such as Germany are facing an even more precarious conundrum. In addition to being Europe’s largest economy, Germany saw Russia accounting for 55% of the state’s gas imports in 2021 and 40% in the first quarter of 2022. 

The case becomes more convoluted when one factors in Germany’s role as a global environmental leader – one which spearheaded several climate goals for Europe, most notably the total phaseout of coal target for the year 2030 and the EU’s decision to increase the share of renewables in the bloc’s energy production to 40%, also targeted for 2030.

One cannot help but question how the suspension of environmental concerns (especially from its most vocal proponents) in the face of complex geopolitical developments is given justifications, while those states located in the ‘periphery’ were heavily criticized for proceeding ahead with Russian oil imports. It appears in the realm of energy politics, only the ‘periphery’ will be trapped within moral dilemmas while the ‘center’ can afford to simply sidestep them. Whether it is Germany, Denmark, or the United Kingdom (UK), it is puzzling to see some of the champions of environmental activism now stepping back in time and justifying their decisions to revive coal power-plants. 

Concomitantly, there is a profound sense of urgency in the Western bloc to branch out and seek alternative suppliers for oil imports to curtail Russia’s weight over the global energy market. A notable instance of such a development is illustrated in the US’ State Department permitting Italian oil company Eni SpA and Spain’s Repsol SA to begin shipping Venezuelan oil to Europe in a bid to reduce dependence on Russia. It is worth mentioning that when the Venezuelan oil industry was hit by a wave of US-led sanctions in 2019, Russia was quick to fill the gaps experienced by US refiners, according to a David Smilde. What is particularly intriguing, Smilde notes, is that the US’ Gulf-coast based oil refinery industry is suited for a heavier grade of crude oil such as Venezuela’s or Russia’s, with light oil grades like Saudi Arabia’s or US shale drillers being unsuitable, infrastructurally. This context leads to the question: is it exclusively in the Western bloc’s jurisdiction to establish and re-establish who is the new global ‘antagonist’ or who is the new ‘ally?’ An affirmative answer indicates that the global order is one which is fortified by Euro-centric and Western-centric concerns which, by extension, are shaped to represent international concerns. 

If the periphery attempted to challenge the Western-centric setting and re-setting of the international order, charges predicated on the ‘enabling’ of anti-democratic and authoritarian regimes (in addition to not ‘doing enough’ on the climate front) would be lodged. Upon probing such accusations, it appears as though there exists a certain monopoly over narratives by the ‘center’ that transcend beyond the domain of energy politics. By continuing to entrench this power-play whereby the application of moral standards and considerations markedly differ according to where one is placed in the center-periphery dichotomy, we only run the risk of deepening mistrust, derailing opportunities for conflict resolution and international cooperation and harkening back to (neo)colonial power relations. 

Ana Tawfiq Husain is a Dean’s Fellow and Lecturer in the Social Development and Policy Program at Habib University, Karachi. She attained her MA in International Relations from King’s College London and her BA (Hons.) in Social Development and Policy with a Minor in History from Habib University.