Quite a few politicians from both sides of the divide have expressed their views on the conduct of Presidential Elections stating that for any candidate aspiring to become the Executive President of Sri Lanka, needs to obtain 50% plus one vote out of the valid votes counted, as the minimum requirement for the Commissioner of Elections to declare the candidate winner.
The latest to make this claim in a ‘voice cut’ was none other than the former General Secretary and current National Organizer of a main political party. He even went a step further describing the process and said if each of the three main parties fielded a candidate; no one would be able to achieve this minimum requirement causing a stalemate– and the country would become unable to elect a President!
This is a fallacy.
Let’s refer to- Presidential Elections Act, No. 15 of 1981- [Presidential Elections (Amendment) Act, No. 16 of 1988--does not deal with counting and declaration of a winner]
PART IV --THE COUNT , [quoting the above In a nutshell]
Sections 56,57,58,59 and 60 :
The Commissioner ascertains if any candidate has received more than 50% of valid votes and the candidate receiving more than 50% declared elected. If no candidate receives absolute majority—where there are three candidates, eliminate the last candidate and count the second/third preferences of eliminated candidate as a vote in favour of other two; or if there are more than three eliminate the rest leaving first and second to count the second preference of eliminated as a vote in favour of remaining candidates; and where the second preference is not counted, to count the third preference for one or the other of the remaining two candidates, as a vote in favour of such remaining candidate. Returning officer to add preferences and prepare a fresh statement. The returning officer shall prepare a statement indicating the number of second preferences and third preferences specified in favour of the remaining two candidates.
Sec. 61. The Commissioner shall, on receipt of the statements thereby ascertain which of the remaining two candidates has received the majority of the votes so counted and forthwith declare the candidate who has obtained such majority to be elected to the office of President.
It is obvious that there is no necessity for the winner to obtain “50% plus one vote.”
In fact a candidate receiving a percentage even as low as 10% can be elected President, if there are more than two candidates and say each receiving, 9.8, 9.8, 8.6, 8.3…., in any descending order to total 100%, and if one of the first two after adding the eliminated candidates second and third preferences, yet there is a strong possibility that the percentage revolves around 10% or less.
There is no minimum cut-off point: take a hypothetical case, if there are 30 or 40 candidates who are almost equally popular, a 2 to 3 per cent of valid votes would be sufficient for one to become the Executive President of Sri Lanka.
Elections before December 9, 2019
As per Article 31(3) of the Constitution, December 9, 2019, is the last day by which Presidential Election will have to be held because it says, one month ahead of the end of President Sirisena’s term, which ends on January 9, 2020.
Who will represent POHOTTUWA?
The battle [indecision] over SLPP candidate heats up. Former President Mahinda Rajapaksa’s new party is divided among Mahinda Chintana, Viyath Maga and Chamal factions. [It is not clear if there is a move to promote Basil too, making it a four-cornered contest]
President Sirisena made a reference to the SC seeking its view if he could serve for six years. He sought the Court’s interpretation whether there is any obstacle to him to continue his term of office for six years as President as described in the Article 31 of the 19th Amendment, in terms of Article 129(1) of the Constitution.
The AG arguing in support of President Sirisena stated that the election was held on January 8, 2015, and the incumbent President Sirisena won and assumed duty on January 9, 2015, for the term of office for six years. He proposed that the incumbent President was elected by the voters for the office, to the term of six years.
“It is the sovereignty of the citizens who exercise their franchise to choose by ballot him as President. The power originated from the franchise of the people. The beginning of his office should be measured from the date on which he is elected.”
He further said it is the Constitutional structure where the sitting President was elected. The 19th Amendment is operative after the President was elected for a term of six years.
“There are no provisions in the 19th Amendment to operate same with retrospective effect. Constitutions cannot be amended with retrospective effect,” the Attorney General said making submissions.
He asserted that any adjustment would affect and isolate the Sovereignty of the voter.
President Sirisena’s request to the Apex Court came as a surprise for many as he made arrangements in 2015 through the 19th Amendment to prune the Presidential term from six to five years, in fact, the President sought to make it four, but others intervened and proposed five.
The SC took up the reference to make a ruling on the vagueness over the question of the term of office. The five-member bench of the SC unanimously ruled that his term was restricted to five years.
President Sirisena’s appeal to the Supreme Court caused quite a rouse, when former President Rajapaksa declared that he could contest again if the court ruled in favour of Sirisena.
Gamini Laxman Peiris, the leader of SLPP [Pohottuwa] and former Law Professor will move the District Court, in terms of the Article 125 of the Constitution seeking an elucidation as regards Chandrika Bandaranaike’s and Mahinda Rajapaksa’s eligibility to hand over nominations for the presidential election in 2019.
The District Court, as he believes could refer the matter to SC for a ruling. According to him, within two months the Supreme Court will have to make its decision known to the District Court.
GL Peiris said that the office of President under the 19th Amendment was entirely different from the powers granted to it by the 1978 Constitution.
The Chairman of the new party said that it would be relevant to mention that the Presidency established under Article 30 of the 1978 Constitution couldn’t be weighed against with the Article 3 of the 19th Amendment, which repealed Article 30.
Wide-ranging and comprehensive changes had been initiated in the office of President in respect of the appointment of the cabinet, the number of portfolios the President could hold, dissolution of Parliament, dismissing PM among them.
However, the truth is that former President Rajapaksa’s camp is looking for a Supreme Court ruling on 19th Amendment against the background of his family’s failure to reach a consensus and compromise on who or which Rajapaksa is going to be the Opposition’s candidature for the next Presidential Election due in end 2019, or even earlier if the incumbent president who becomes eligible to call for a poll any time after the lapse of four years, that is on 9th January 2019.
For the first time since 2005, Rajapaksa family who ruled as a team is experiencing the darker side of such groupings.
Family problems come in all forms, shapes and sizes; some are short-lived and easily administered, while others are more chronic and complicated. We do not know if Rajapakas’ are short-lived or chronic, but it cannot be allowed to extend beyond Medamulana and out into the national arena in the event of a victory to one of them at the next poll; If it so happened, it could be worse than the present animosity, enmity and bitterness among the heads of two partners of Unity Government, which has resulted in drastic consequences to the smooth operation of governance.
President Maithripala Sirisena’s Sri Lanka Freedom Party and Ranil Wickremesinghe’s United National Party, while ruling together, flexed muscles and competed against each other that ended with both suffering humiliating losses in the hands of novice [A world record?— emerging victorious defeating two established parties] in February’s elections; Will the governing coalition aspire to repeat the mistake in 2019?
More than ten names of potential UNF candidates are being rumoured to come forward if the leader, as he did twice in 2010 and 2015, backs out at the last moment. The strategy of a surprise, like in 2015, is unlikely to make an impact on the electorate any more.
For seventy years, the two political parties backed by the majority race dominated the political arena alternating power between them to rule the country. They cashed in on racial and religious emotions resulting in the nation suffering untold misery.
Sri Lankan voters, though highly literate, lacked the ability to apprehend the true nature of politics; especially through perceptive understanding.
With their moral values eroded, had taken decisions fashioned by the circumstances that prevailed. This allowed the roguish politicians and religious racists to make strides in politics.
The writer can be contacted on kksperera email@example.com