Tuesday, March 28, 2023

Explanation: Gotabaya Rajapaksa fled Sri Lanka but remains its president. See how article 37.1 of the Constitution works

Sri Lankan President Mahinda Yapa Abeywardena announced that President Gotabaya Rajapaksa has empowered Prime Minister Ranil Wickremsinghe to serve as interim president in accordance with Article 37.1 of the Constitution.

This means that President Rajapaksa, who fled to the Maldives on a Sri Lankan Air Force plane in the early hours of Wednesday (July 13) after failed attempts to leave the country, has not yet resigned.

Even so, President Abeywardena continued to say on Wednesday that Gotabaya would indeed step down, as planned.

What is Article 37.1 of the Constitution of Sri Lanka?

Pursuant to this provision, if the President is of the opinion that “by reason of illness, absence from Sri Lanka or any other cause” he is unable to discharge his functions or exercise his powers, he may appoint the Prime Minister to act in his office during this period. He may also appoint a Cabinet Minister to serve as Prime Minister for this period.

Does this mean that Gotabaya Rajapaksa remains president?

Yes, because Article 37.1 still assumes that there is still an incumbent President.

Had Gotabaya resigned, Article 40 would have been the relevant provision. Under the terms of this article, in the event of a vacancy in the post of President before the end of the five-year term, Parliament must elect one of its members as President. The successor will hold the office for the remainder of the vacant president’s term.

This election must be held within one month after the vacancy arises. The election is by secret ballot, and the candidate must win an absolute majority. On Tuesday, expecting the president to resign on July 13, as he had said, the president announced the election date as July 20.

But wouldn’t Wickremsinghe have been president anyway?

Pursuant to article 40, between the vacancy that arises and the inauguration of the new President elected by Parliament, the Prime Minister functions as President-in-Office. And he will appoint one of his Cabinet Ministers to act as Prime Minister.

As acting prime minister, Wickremesinghe would have become the interim president under Article 40 – but he would have been president only until the election. He is now serving as President indefinitely as Article 37.1 does not prescribe any time limit.

But why hasn’t Gotabaya resigned yet?

One reason is that he wants to remain in office to maintain his immunity until he is sure he will not be forced to return to Sri Lanka. Also, according to some reports, he is negotiating safe passage for his family members.

Nation World News Desk
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