Given the fact that the Sri Lankan Presidential election is to be held with a number of candidates in the fray, the procedure could be complicated with the possibility of the counting going through three phases.
The process is set to begin on Friday following Parliament Speaker Mahinda Yapa Abeywardena’s formal announcement that he has received an authenticated letter from Gotabaya Rajapaksa resigning from the Presidency. Gotabaya had sent the letter by email from his refuge in Singapore late on Thursday. His signature was authenticated by the Attorney General.
According to Gehan Gunatilleke, attorney-at-law, and a senior partner at the Colombo-based LexAG – Legal Consultants, the election will be held under the Presidential Elections (Special Provisions) Act, No. 2 of 1981 (See: https://www.himalmag.com/what-next-if-president-rajapaksa-resigns-srilanka-2022/).
Under the 1981 Act, Parliament shall elect as President one of its members who is qualified to be elected to the office of President, to hold office for the unexpired period of the term of office of the President vacating office.
The Act says that such an election shall be held as soon as possible after, and in no ease later than one month from, the date of occurrence of the vacancy. If such a vacancy occurs after the dissolution of Parliament, the President shall be elected by the new Parliament within one month of its first meeting.
The Secretary-General of Parliament shall inform the members of Parliament of the date and time fixed for such meeting. When Parliament meets, 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 forty-eight hours and not later than seven days from the date of such meeting.
On the date fixed for the receipt of nominations, Parliament shall meet and the Secretary-General shall act as the returning officer. A member who wishes to propose any other member for election to the office of President shall obtain the prior written consent of the member whom he wishes to propose indicating that such member is willing to serve if elected.
A member addressing himself to the Secretary-General shall propose some other member present in Parliament to the office of President. The proposal shall be seconded by another member, but no debate shall be allowed.
If only one member is so proposed and seconded to the office of President, he shall be declared by the Secretary-General to have been elected to such office. But if more than one member is so proposed and seconded, Parliament shall 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.
Procedure on Election Day.
Before voting commences the returning officer shall show the empty ballot box or boxes to the members and thereafter seal it or them, as the case may be, in their presence.
When voting commences, the returning officer shall call out the name of each member including the Speaker who shall proceed to the returning officer’s table and receive a ballot paper. The returning officer shall initial the back of the ballot paper with his initials in the presence of the member.
The member who receives a ballot paper shall then proceed to the cubicle provided in the chamber and mark his ballot paper. Every ballot paper shall be substantially in the Form in the Schedule hereto and shall contain the names of all the candidates.
When a member has received a ballot paper, he shall signify thereon, in the manner hereinafter provided, for whom he desires to vote. The member shall then fold the ballot paper so that the returning officer’s initials thereon may be visible and, having held up the ballot paper in such manner as to enable the returning officer to see the initials, shall put the ballot paper in a ballot box or one of the ballot boxes if there is more than one, placed on the returning officer’s table.
If a member inadvertently spoils a ballot paper, he may return it to the returning officer who shall, if satisfied of such inadvertence, give him another ballot paper and the spoilt ballot paper shall be immediately cancelled by such returning officer.
The returning officer shall before the voting is due to end, call out a second time the name of any member who has not voted when his name was called out under subsection. If such a member does not vote after his name is called out a second time, he shall be deemed to have abstained from voting.
Manner of Voting.
Each member shall have only one vote. No vote shall be given by proxy. A member in giving his vote shall place on his ballot paper in the square opposite the name of the candidate for whom he votes; and may, in addition, place on his ballot paper opposite the names of the candidates in the order of his preferences.
A ballot paper shall be invalid when on which anything is written or marked, by which the member can be identified; or which does not bear the returning officer’s initial.
Counting
The returning officer shall examine the ballot papers and shall, after rejecting any invalid ballot papers, divide the remaining ballot papers according to the first preferences recorded for each candidate. He shall then count the number of preferences recorded for each candidate.
If any candidate desires to be present at the counting of votes he may do so or if he wishes to appoint another member to represent him at the counting he may inform the returning officer after obtaining the consent of that member.
Where any candidate has received more than one-half of the valid votes cast, the returning officer shall forthwith declare such candidate elected to the office of President.
Procedure where no candidate receives an absolute majority.
Where no candidate has received more than one-half of the valid votes cast, the returning officer shall eliminate from the contest the candidate who has received the lowest number of votes, and the second preference of each member whose vote had been for the candidate eliminated from the contest shall be counted as a vote for the candidate for whom such preference is recorded and shall be added to the votes already counted in his favour.
Where after such elimination, no candidate has received more than one-half of the valid votes cast, the returning officer shall proceed with the count, eliminating after each such count the candidate who has received the lowest number of votes at that count and adding to the number of votes already counted in favour of the remaining candidates.
When no candidate gets more than 50% of the votes, the third preference will be taken into account.
Where at the end of the count, no candidate has obtained more than one-half of the valid votes, the returning officer shall declare the candidate who has obtained the majority of the votes at that count, elected to the office of President.
Equality of Votes
Where there is equality of votes obtained by two candidates, and the addition of one vote would determine which candidate would be declared President under this Act, the determination shall be made by lot by the returning officer in such manner as he may, in his absolute discretion determine, and he shall declare such candidate elected to the office of President.
Where equality is found to exist between two or more candidates and the addition of one vote would determine which candidate is not to be eliminated under this Act, then the determination of the candidate to whom such additional vote shall be deemed to have been given for the purpose of such determination shall be made by lot by the returning officer in such manner as he may, in his absolute discretion, determine.
No election shall be called in question except by an election petition.
A number of MPs are likely to throw their hats into the ring. Those who have expressed an interest so far are Acting President and Prime Minister Ranil Wickremesinghe, Leader of the Opposition, Sajith Premadasa, Chairman of the opposition Samagi Jana Balawegaya (SJP) Field Marshal Sarath Fonseka, Sri Lanka Podujana Peramuna MP Dullas Allahapperuma.
July 18 has been given as the date for nominations and July 20 for polling, by parliament Speaker Mahinda Yapa Abeywardena.
