Sri Lanka’s Presidential Election and Constitutional Crisis

The Sri Lankan people realised that power ultimately rested in their hands. As the economic crisis deteriorated over the last couple of months, protests began to take place all around Sri Lanka. The severe day-to-day hardships such as lack of essential services like buses, trains and medical vehicles, and officials say it doesn’t have enough foreign currency to import more, thus caused by a weakening Sri Lankan economy had given rise to small periodic protests for months, but on the night of 31 March 2022, these erupted into a solemn demonstration when protestors entered the President’s private residence in Colombo. The event captured the public mood, and within hours, a concerted protest movement demanded the resignation of the three Rajapaksa brothers, who were President, Prime Minister, and Finance Minister, had begun. For a rapid finance instrument and a bridge loan to stabilise the economic crisis, the Sri Lankan government has approached the International Monetary Fund (IMF). Securing a loan from the IMF would require Sri Lanka to implement a debt restructuring.

What occurs when a country runs out of money?

Sri Lanka is unable to buy the goods it needs from abroad, and in May, it failed to make an interest payment on its foreign debt for the first time in its history. This failure has damaged a country’s reputation with investors, making it harder to borrow the money it needs on international markets. This condition has further harmed the confidence in its currency and economy. Mr Wickremesinghe declared a state of emergency across the country and imposed a curfew in the western province while he tried to stabilise the situation.

What led to the economic crisis?

The government has blamed the Covid pandemic, which badly affected Sri Lanka’s tourist trade – one of its biggest foreign currency earners. It also stated that many tourists were frightened due to deadly bomb attacks in 2019. Although, experts have blamed the President’s poor economic mismanagement.

Executive Branch

Sri Lanka is a semi-presidential representative democratic republic, whereby the President of Sri Lanka is both head of state and head of government and relies on a multi-party system. The President exercises executive power on the advice of the Prime Minister and the Cabinet of Ministers. Legislative power is vested in the Parliament. For decades, the party system was dominated by the socialist Sri Lanka Freedom Party and the conservative United National Party. The Judiciary is independent of the executive and the legislature.

The President, directly elected for a five-year term, is head of state, head of government, and commander in chief of the armed forces. The election occurs under the Sri Lankan form of the contingent vote. Responsible to Parliament for the exercise of duties under the Constitution and laws, the President may be removed from office by a two-thirds vote of Parliament with the concurrence of the Supreme Court.

The President appoints and heads a cabinet of ministers responsible to Parliament. The President’s deputy is the prime minister, who leads the ruling party in Parliament. A parliamentary no-confidence vote requires the dissolution of the cabinet and the appointment of a new one by the President.

Important Constitutional Provisions in nexus with Sri Lankan Presidential Election

Article 30(1) states that there shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and the Government, and the Commander-in-Chief of the Armed Forces. As per Article 30(2), the President of the Republic shall be elected by the People and hold office for five years. No person who has been twice elected to the office of President shall be qualified thereafter to be elected to such office by the People.

Article 30(3) states that the poll for the President’s election shall be taken in less than one month and not more than two months before the expiration of the term of office of the President in office.

Article 40 (the vacation of office by the President and election of succeeding President) also mentions that during the vacancy of the office of President, the Prime Minister shall hold the office till the election of a new President and shall appoint one of the other Ministers of the Cabinet to act in the office of the 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 the President. It also states whoever succeeds the said post shall hold office only for the unexpired period of the President’s term of office vacating office. Such election shall be held as soon as possible after, and in no case later than one month from, the date of the occurrence of the vacancy. The 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.

Article 93 states that voting for the election of the President and of the members of Parliament and at every Referendum shall be free, equal, and by secret ballot. The election authority must be willing and able to apply the electoral law fairly, use sanctions (and the power of persuasion) to deter violations of the law, and competently administer the electoral process and challenge any attempts to subvert that process.

Article 104 of the Constitution states the Commissioner of Elections shall exercise, perform or discharge all such powers, duties or functions as may be conferred or imposed on or vested in him by the law for the time being in force relating to elections to the office of President of the Republic and of Members of Parliament and to Referenda, or by any other written law. The Commissioner of Elections is responsible for the superintendence, direction and control of the preparation of accurate electoral registers annually and for the conduct of elections.

In Karunatilake v. Dayananda Dissanayake, Commissioner of Elections and Others[i], the Supreme Court emphasised the powers of the Commissioner of Elections. For example, on the issue of whether the Commissioner should have submitted to the emergency regulation suspending election, the Court observed,

“…it is necessary to remember that the Constitution assures him (the Commissioner of Elections) independence, so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections -even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders… .”[ii]  

Karunatilake v. Dayananda Dissanayake, Commissioner of Elections

The observations regarding the powers and duties of the Commissioner in this particular decision did much to enhance the stature of the Commissioner of Elections.

Law Relating to Election Petitions

Subsections (a) and (b) of section 91 of the Presidential Elections Act read as follows;

The election of a candidate to the office of President shall be declared to be void on an election petition on any of the following grounds which may be proved to the satisfaction of the Election Judge. Namely:-

• that by reason of general bribery, general treating or general intimidation or other misconduct or other circumstances, whether similar to those enumerated before or not, a majority of electors were or may have been prevented from electing the candidate whom they preferred.
• non-compliance with the provisions of this Act relating to elections if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance materially affected the result of the election.

The Supreme Court amply demonstrated the unsatisfactory nature of the law in the case Sirimavo Bandaranaike v. Ranasinghe Premadasa and Chandananda De Silva election petition[iii].  Mrs Sirimavo Bandaranaike was an unsuccessful candidate in the presidential election of 19 December 1988 who filed a petition to declare the election of the 1^st Respondent (Mr Premadasa) was void. The broad grounds on which she sought this relief are as follows–

1. That by reason of general intimidation, the majority of electors were or may have been prevented from electing the candidate whom they preferred under section 91(a) of the Presidential Elections Act No. 15 of 1981[iv]
2. That by reason of non-compliance with the provisions of the Presidential Elections Act relating to elections, the election was not conducted in accordance with the principles laid down in such provisions, and such non-compliance affected the result of the election under s. 91 (b) of the Act.[v]
3. That by reason of “other circumstances”, to wit, the failure of the Commissioner of Elections (the 2^nd respondent) and/or certain members of his staff to conduct a fair and free election, in accordance with the provisions of the Act, more particularly set out in paragraph 9 read with paragraph 8 of the petition, the majority of the electors were or may have been prevented from electing the candidate whom they preferred, under section 91 (a) of the Act.[vi]

This Election Petition was heard by a Supreme Court bench consisting of Justices GPS de Silva, P. Ramanathan, P.R.P. Perera, A.S. Wijetunga and S.B. Goonewardena. The Court held that:

“the petitioner has not in any event established that the 2^nd respondent failed to conduct a fair and free election in accordance with the elections law so as to say that the majority of electors were or may have been prevented from electing the candidate whom they preferred as required by section 91(a) of the Presidential Elections Act.”

Sirimavo Bandaranaike v. Ranasinghe Premadasa and Chandananda De Silva

Present Status

Sri Lanka’s acting President, Ranil Wickremesinghe, and prominent Opposition leader, Sajith Premadasa, are among the four leaders who are in the race to become the nation’s next President as the lawmakers have met to start the process of electing a new president to succeed GotabayaRajapaksa, who resigned after unprecedented protests against his government over the country’s economic collapse. Wickremesinghe has said he would initiate steps to change the Constitution to curb Presidential powers and strengthen Parliament, restore law and order and take legal action against ‘insurgents’.[vii] There are news reports of Premadasa withdrawing his candidature.

Conclusion

As anti-government protests continued to simmer in the crisis-hit nation, Sri Lanka’s acting President Ranil Wickremesinghe declared a state of emergency. The rebellion of the ordinary people has dethroned the powerful Rajapaksa brothers, Gotabaya and Mahinda. The country is now waiting for a new leader to steer them through this emergency to harmony and stability. There is no question that the electing system addresses the very lifeblood of the system of representative democracy. In order to inculcate a healthy respect for the Constitution and its primary institutions, all those entrusted with discharging fundamental duties connected with the electoral process should be above suspicion. Confidence in the fairness and objectivity of the electoral process is essential for the maintenance of democracy and the stability of the country. If a large percentage of the public doubt the integrity of the electoral process in the Sri Lankan Presidential elections, it would cause a breakdown of trust and respect for the basic democratic processes and institutions. We believe that the record of the Judiciary has in recent years been a mixed one. The law should be evaluated, especially in the space connecting with political decision petitions.

Meenakshi Choubey is an Advocate registered under the Bar Council of Maharashtra & Goa and has done her LLM from NMIMS University, Mumbai, and BA LLB from GH Raisoni Law College, RTMNU Univerisity.

Disclaimer:  The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

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[i]Karunatilake and another v. Dayananda Dissanayake, Commissioner of Elections and Others (1999) 1 Sri LR. Pg. 157

[ii]Ibid at 182.

[iii]Sirimavo Bandaranaike vs. RanasinghePremadasa and Chandananda De Silva, (1992)2 Sri L.R

[iv]Sirimavo Bandaranaike vs. RanasinghePremadasa and Chandananda De Silva, (1992)2 Sri L.R pg. 8

[v] ibid

[vi] ibid

[vii]https://apnews.com/article/elections-economy-sri-lanka-government-and-politics-98a2b93f3508e86870aff352386ac1e9