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.

Sacking of PM is Unconstitutional

The country, until two days ago, had a Prime Minister in office who commanded the confidence of parliament, which he had demonstrated not long ago by having a no confidence brought against him defeated in parliament.

President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister. At the press conference held on 27 October 2018, as reported in Adaderana (GL explains how PM was removed and why Parliament was prorogued) Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are (i) the cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1), and (ii) the President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Peiris is ‘compulsory removal’. What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.  

The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office. If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant.

Mahinda Rajapaksa and the Term Limit

The Nineteenth Amendment has once again become the subject of controversy, and its current focus concerns the provision in the Nineteenth Amendment that disqualifies the same person from being elected as President for more than two terms. The two-term limit is not an innovation of the Nineteenth Amendment. A provision imposing a term limit was in the Constitution as it was originally enacted in 1978 but it was repealed by the Eighteenth Amendment enacted during Mahinda Rajapaksa’s tenure as President. It was re-introduced by section 3 of the Nineteenth Amendment which inserted the following new paragraph as Article 31(2) of the Constitution: “No person who has been twice elected to the office of President by the People, shall be qualified thereafter to be elected to such office by the People.” (emphasis added). This prohibition was reinforced by section 21 of the Nineteenth Amendment which added Article 92(c) of the Constitution which disqualified a person who “has been twice elected to the office of President by the People” from being elected to the office of President thereafter.  This is identical to the paragraph that existed as Article 92 (c) of the 1978 Constitution before it was repealed by the Eighteenth Amendment. 

It has been argued, nevertheless, by some, including Professor G.L. Peiris and ex-Chief Justice Sarath Silva, that these provisions do not disqualify Mahinda Rajapaksa from seeking a third term. Mahinda Rajapaksa has already served two terms as President but if this argument holds, then he would be eligible not only to run for a third term but also a fourth. It has been contended that according to the Constitution as amended by the Eighteenth Amendment there was no provision imposing a term limit, and as the Nineteenth Amendment does not expressly state that Article 31(2) is to apply retrospectively, it should not apply to Mahinda Rajapaksa, who, in ex CJ Sarath Silva’s rather infelicitous oxymoronic phrase, is ‘a previously elected incumbent in office’.  (Sunday Observer 19 August 2018, Mahinda ineligible to contest 2019 prez poll – Jayampathy). Mahinda Rajapaksa is not currently holding office to be called an incumbent.

The President is Powerless to Remove the Prime Minister in Sri Lanka

Our comrade Dr Reeza Hameed explains that ‘The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.’

Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution of Sri Lanka, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears. I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister. I disagree with this conclusion for the reasons I have given below. The tenure of Prime Minister’s office pre-Nineteenth Amendment is as follows.

The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he (1) is removed by the President, (2) resigns his office, or (3) ceases to be a Member of Parliament.” The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015.

Reportage on PIIA’s Peace in South Asia Conference 2017

“The current policies of the United States of America for South Asia can disrupt peace in the region” – President Mamnoon Hussain at the 70^th Anniversary Conference of the PIIA.

Donald J Trump’s election to the White House demonstrates the extremely vulgar nature of American society. And it is difficult to disagree with the assessment that the American president really is a “deranged dotard”. Heaven knows, despite the tyrannical nature of his own country, North Korea’s insane “little rocket man” might even be making a valid point when he calls Trump’s sanity into question. Trump’s totally crazy brinkmanship with Pyongyang shows that he is willing to put the safety of billions of people at risk by his recklessness. But perhaps it is all just a charade to deliberately divert attention far away from emerging domestic problems connected to Robert Mueller’s investigation, the Sword of Damocles hanging over Trump and his cronies’ heads, about the Trump campaign’s collusion with the Kremlin to rig the election. Overall Trump is a sexist and a racist. He never tells the truth and serially dismisses all accusations of sexual misconduct/offending against him. Against American and British interests, he retweets from Britain First – a racist and neo-Nazi organisation.

His hatred of Muslims is so severe that he has even declared Jerusalem to be Israel’s capital. Clearly, he is deliberately destabilising the Middle East. Trump is a danger to the world and it is hard to disagree with the soft speaking figure of president Mamnoon Hussain that the present American administration is a threat to peace in South Asia (and indeed the rest of the world). The reckless and inflammatory rhetoric manifested by Trump can only bolster Hindus’ hatred for Muslims in India where killing Muslims for “love jihad” (or having a Hindu girlfriend or boyfriend) is seen as a force for good. In such testing times, The Pakistan Institute of International Affairs (PIIA) organised a regional conference which was held last month in Karachi. Esteemed speakers from all walks of life addressed the lively audience.

Muslim Law: The Need For Reform

‘There is nothing in the Quran which says that a man should marry a young girl … It is not in the best interests of a girl to be married off early. Early marriage robs a girl of her childhood,’ argues Dr Reeza Hameed.

The All Ceylon Jamiyyathul Ulama (ACJU) is opposed to making any changes to the existing Muslim family law. Mufti Rizwi, who is a member of the Saleem Marsoof Committee appointed to look into reforms to the Muslims Marriages and Divorces Act (MMDA) of 1951, has made the oracular pronouncement that the law is ‘perfect in its present state’ and required no reform. Mufti Rizwi also presides over the ACJU. Regrettably, the views expressed by the Mufti and his outfit are anachronistic and obscurantist. Matters relating to Islam and Muslim law ought not to be the sole concern of the ulema. In this comment I have touched upon some issues in the hope that it will contribute to the debate on the need for reform. In Muslim law marriage is not a sacrament but a civil contract. Neither religious ritual nor having it done in a mosque is essential to confer validity to a marriage. A Muslim marriage is contract like any other in Islamic law. Parties to a marriage should have legal capacity to enter into the contract.

There has to be an offer and an acceptance of that offer with the intention of establishing a marital relationship. There must be consideration given to the wife known as mehr. All the schools of law recognise that a person has freedom of choice to enter into a marriage and that he or she cannot be forced into one. The age at which a young Muslim acquires legal capacity to marry has been a contentious issue. The traditionalist view adumbrated by classical jurists is that a person acquires the legal capacity to marry on attaining puberty. In the Hedaya, the manual on Hanafi law, the earliest age at which puberty is attained by a girl is 9 and by a boy at 12. A similar view is adopted by the Shafi School, which is followed by a majority of Sri Lankan Muslims. The presumption of Muslim law as applied in India and Sri Lanka is that a person attained puberty at 15.

Dr Reeza Hameed: Mahinda Rajapaksa cannot become Prime Minister

The question whether ex-President Mahinda Rajapaksa is eligible to be appointed to the Prime Minister’s post if he has the support of a majority of members in Parliament following the August 17 poll is the subject of current debate. President Sirisena has made public his intention not to appoint Rajapaksa as the Prime Minister and has hinted that ‘there are enough seniors in the party to be the Prime Minister’. There are some within the UPFA who want Rajapaksa as their Prime Minister in the event of a UPFA majority in Parliament. A.H.M. Fowzie, for instance, has acknowledged that the appointment of the Prime Minister is the prerogative right of the President but that, after the elections are over, the UPFA ‘will prevail upon President Sirisena to accommodate Rajapaksa as the Prime Minister’.

Another UPFA candidate has threatened to do a Dahanayake and run around with the mace if Mahinda Rajapaksa is ignored for the post. G.L. Peiris has weighed in to say that nowhere in the constitution is it stated that a former President cannot become Prime Minister. The President, he said, must appoint as Prime Minister the member who commands the support of a majority of parliamentarians, and he must appoint Mahinda Rajapaksa if he happened to be that person. Former Chief Justice Sarath Silva has declared as untenable the argument that Rajapaksa is disqualified from acting as President simply because he has already been elected twice as President.

Dr Reeza Hameed: ‘Naya Qanoon’ and the 19th Amendment

The draft 19^th Amendment reminds me of the story ‘Naya Qanoon’ (New Constitution) written by the late Saadat Manto, regarded by many as the finest writer of short stories in Urdu and as the greatest South Asian writer of the 20^th century. Set in pre-independence Lahore of the 1930s the main protagonist of the story is a tongawalla called Mangu. One day, Mangu over-hears two of his customers discussing a new constitution that was to be introduced in a few days. Mangu hated the British, and was sick and tired of the humiliation and abuse that he had suffered under British rule. Mangu is excited by the prospect of freedom that he believed would be ushered in by the constitution. He imagined it would be something bright and full of promise and spends the next few days getting ready to celebrate the arrival of the new constitution.

On the appointed day, he discovers that nothing has changed and everything appeared as before. An Englishman with whom he had an argument on a previous occasion approaches him for hire. Emboldened by the prospect of change promised by the constitution, Mangu wants to put his customer in place and in a sharp voice quotes his customer more than his usual fare for the journey. The encounter with the Englishman ends up in an altercation with Mangu landing several blows on

Dr Reeza Hameed: President’s Reference to the Supreme Court

It would be impossible for the Court to arrive at a considered opinion within such a short period of time …

It is reported in the media that President Rajapaksa has referred to the Supreme Court for its opinion the question of his own competency to contest a further term, and that the Registrar of the Court, on the instructions of the Chief Justice, has written to the President of the Bar Association of Sri Lanka (BASL) inviting submissions in writing but denying an opportunity to make oral arguments in Court. Furthermore, submissions are required to be submitted to Court no later than 3.00 pm on 7 November, which gives anyone less than 48 hours to do so. It appears that the Court is required to give its opinion to the President on 10 November 2014.

It is evident that President Rajapaksa has made this reference purportedly acting under Article 129 (1) of the Constitution, which provides for the Court to exercise it consultative jurisdiction. A president, acting under this provision, may refer ‘a question’ (not any question)

Dr Reeza Hameed: That Third Term

President Rajapaksa’s eligibility to seek a third term as President has become a contentious issue ever since former Chief Justice Sarath Silva declared several weeks ago that President Rajapaksa is legally barred from contesting a third time. Some commentators have challenged Sarath Silva’s views and Chinthaka Mendis was one of them (see his September 2014 article ‘Why Sarath Silva is wrong’). In my view, Sarath Silva is right in his assertion that President Rajapaksa is disqualified from bidding for a third term and that the Eighteenth Amendment (to Sri Lanka’s Constitution) did not remove the disqualification to which he became subject no sooner he was elected for a second term.

The view that President Rajapaksa is disqualified to contest a third term follows from a reading of the Constitution as amended by the Eighteenth Amendment, read together with the Interpretation Ordinance. A correct interpretation of the Constitution would lead one to the conclusion that the Eighteenth Amendment was only prospective in its operation and despite that amendment President Rajapakse’s disqualification continues.