How Parliament elects Acting President

President Gotabaya Rajapaksa has buckled under pressure from protesters demanding his resignation. On Saturday (09) he threw in the towel for all practical purposes. He has undertaken to resign tomorrow (13 July), according to a special announcement Speaker Mahinda Yapa Abeywardena made at the party leaders’ meeting in the aftermath of the capture by the protesters of the President’s House, the Presidential Secretariat and Temple Trees, on Saturday.

We will witness something unprecedented in case the President submits his resignation to Speakers Abeywardena, as expected. No Executive President has ever resigned in this country, but the office of the President became vacant in on 01 May 1993 following the assassination of President Ranasinghe Premadasa. The then Prime Minister D. B. Wijetunga took over as the Acting President immediately, and the parliament subsequently endorsed his appointment a few days later. Ranil Wickremesinghe became the Prime Minister.

The party leaders have not reached a consensus on who the Acting President will be, and there are said to be several aspirants. It is widely believed that Speaker Abeywardena will succeed President Rajapaksa. The best way out is to ensure that the Acting President will be elected uncontested so as to defuse tension in the polity, and bring about the much-needed consensus and cooperation. A contest will only result in animosity, which is to be avoided.

Not many people are conversant with the process of electing an Acting President due to the resignation of the serving President. Here is how the office of the President falls vacant; an Acting President is appointed, and the parliament elects the successor of the President who resigns.

The office of the President could fall vacant for six reasons, according to Article 38 of the Constitution:

(a) upon his or her death;

(b) if he or she resigns his office by a writing under his hand addressed to the Speaker;

(c) if he or she ceases to be a citizen of Sri Lanka;

(d) if the person elected as President wilfully fails to assume office within two weeks from the date of commencement of his term of office;

(e) if he or she is removed from office

(f) if the Supreme Court in the exercise of its powers under Article 130 (a) determines that his or her election as President was void and does not determine that any other person was duly elected as President.

Filling the vacancy

Article 40 of the Constitution specifies the process to be followed in filling the vacancy so created: if the office of President becomes vacant prior to the expiration of his term of office, Parliament shall elect as President a sitting MP who is qualified to be elected to the office of President. Any person succeeding to the office of President shall hold office only for the unexpired period of the term of office of the President vacating office.

Between the occurrence of the vacancy and the election of the Acting President, the Prime Minister shall act in the office of President and shall appoint one of the other Members of the Cabinet to act in the office of Prime Minister.

If the office of Prime Minister is vacant, or he or she is unable to act in the office of the President, the Speaker shall succeed to the post of the President. (Prime Minister Ranil Wickremesinghe is under pressure from the anti-government protesters not to accept the post of the Acting President for two reasons: he was defeated at the last general election, and has failed to tackle the economic crisis.)

Thereafter, the parliament is empowered to elect one of its members as the Acting President as soon as possible and in no case later than one month from the date of the occurrence of the vacancy. In a situation where only one MP is nominated, he or she becomes the Acting President uncontested, as was the case in May 1993.

Article 40 (b) of the Constitution says: ‘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: If the office of the President falls vacant after the dissolution of the parliament, the President shall be elected by the new parliament within one month of its first sitting.”

Article 40 (02) says, “The provisions of the Constitution relating to the President (other than the provisions of paragraph (2) of Article 32 shall apply, in so far as they can be applied, to an acting President.” [Article 32 (2) says, “Upon such assumption of office the President shall cease to hold any other office created or by the Constitution and if he is a Member of Parliament, shall vacate his seat in Parliament. The President shall not hold any other office or place of profit whatsoever.”]

The process of the election by the parliament of the Acting President is as follows. The Presidential Elections (Special Provisions) Act provides for it. The Act says that ‘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’. It goes on to say that ‘when Parliament meets in pursuance of section 4, the Secretary-General shall inform Parliament that a vacancy in the office of President has occurred, and 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’.

On the date fixed for the receipt of nominations Parliament shall meet with the Secretary-General acting as the returning officer. The Act provides for the procedure to be followed:

“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. 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, and 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 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.”

“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.

A member shall indicate on the ballot paper for whom he or she desires to vote, and then fold the ballot paper so that the returning officer’s initials thereon may be visible and, having held it up in such manner as to enable the returning officer to see the initials, before putting it into the ballot box.

“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, who 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. 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.”

Marking of ballot papers

Each member shall have only one vote. No vote shall be given by proxy. A member in casting his vote

(a) shall place on his ballot paper the figure 1 in the square opposite the name of the candidate for whom he votes; and

(b) may, in addition, place on his ballot paper the figure 2, or the figures 2 and 3, or the figures 2, 3 and 4, and so on, in the squares opposite the names of the candidates in the order of his preferences.

Counting and the declaration of the winner

If a candidate has received more than 50% of the votes cast, the returning officer shall immediately declare such candidate elected to the office of President.

The Presidential Elections (Special Provisions) Act says: “If 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 or her favour.

“Where, after the elimination and count, 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

(a) the second preference of a member whose vote was in favour of a candidate eliminated from the contest; or

(b) where such second preference was in favour of a candidate already eliminated from the contest, the third preference of such member; or

(c) where such a third preference was in favour of a candidate already eliminated from the contest, the next preference of such a member.

(3) 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.”

Breaking a tie

The Presidential Elections (Special Provisions) Act provides for breaking a tie. “Where an equality happens to exist between the votes received by two candidates, and the addition of one vote would determine which candidate shall be declared President, ‘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, and he shall declare such candidate elected to the office of President.

“If an 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, 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.”

One hopes that the election of the Acting President, in case of President Rajapaksa’s resignation, will not lead to a situation, where the tedious process specified by the Constitution and the above-mentioned Act, will have to be followed, and that a consensual approach will be adopted to accomplish the task, while the economic crisis is worsening and public anger is rising.