THAT ABSTENTION VOTE

by Dr Nihal Jayawickrama

It has been reported that at a meeting of the Constitutional Council held a few days ago, the nomination made by President Wickremesinghe of Deshabandu Tennekoon for appointment to the office of Inspector-General of Police was approved, and Tennekoon was accordingly appointed. However, it has also been reported that the Leader of the Opposition, Sajith Premadasa, has claimed that the appointment was made in violation of the Constitution and without the necessary approval of the Constitutional Council. The Speaker, on the other hand, has asserted that, at the meeting which he chaired, the number of votes required for approval of the nomination, namely five, was obtained.

The Constitutional Council is a 10-member body. Its members are the Prime Minister, the Speaker, the Leader of the Opposition, four other members of Parliament, and “three persons of eminence and integrity who have distinguished themselves in public or professional life, and who are not members of any political party”. The Speaker is the Chairman of the Council.

In respect of the office of the Inspector-General of Police, the Constitution states that no person shall be appointed to that office unless the person recommended by the President has been approved by the Council. The Constitution further states that, while the Council should endeavour to make a unanimous decision, no decision of the Council shall be valid unless it has been supported by no less than five members who are present at such meeting. The Constitution adds that the Speaker, as Chairman of the Council, shall not have an original vote, but may, in the event of an equality of votes, have a casting vote.

According to the Leader of the Opposition, four members of the Council – one less than the required five – voted to approve the President’s recommendation, while two members (including him) voted against. Two members abstained. That would have meant the rejection of the recommendation. However, according to Mr. Premadasa, the Speaker then cast his vote in favour of accepting the recommendation. The question then arises: in what capacity did the Speaker vote? He did not have an original vote, but only a casting vote in the event of a tie.

According to newspaper reports, the Speaker has claimed that he exercised his casting vote since the Council was divided, four to four. Although only two members voted against, the Speaker appears to have considered the two abstentions as also two additional votes against, thereby creating a tie, and thus enabling him to exercise his casting vote to secure the majority required to approve the President’s recommendation.

The Constitution does not state that a member who abstains from voting should be regarded as having voted against. If a member has abstained from voting, it means that such member has not cast his/her vote. There is no vote to be counted, either for or against. Moreover, a member may refrain from voting for a variety of reasons, one of which could be a personal relationship or family connection with the person whose appointment is being considered. In such circumstances, a member who would ordinarily have voted for, not against, would have abstained to avoid any appearance of impropriety.

As far as I am aware, in parliamentary practice and procedure, here or elsewhere, a member who has abstained is never deemed to have voted “No”. Abstaining means not voting on a particular Bill or proposal, and a member’s decision to do so is recorded in Hansard as that member having “abstained”. In the UN Security Council, if a permanent member State’s decision to abstain on a critical resolution is deemed to be a negative vote, the consequences would be horrendous because it would constitute a veto, and the result would be the opposite of what that State intended.

If the Speaker purported to exercise an original vote to ensure the approval of the President’s recommended nominee, he would have been acting contrary to the Constitution which expressly denied him an original vote. If he purported to exercise a casting vote, the scenario that he created to enable him to do so was not only unconstitutional, but also unreal and even hilarious.

(Dr. Nihal Jayawickrama is a former Permanent Secretary to the Ministry of Justice, who also served briefly as Attorney-General. He taught Comparative Constitutional Law at the University of Hong Kong, and was the Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan. He was the Executive Director of Transparency International in Berlin, and is currently the Rapporteur of the UN-sponsored Judicial Integrity Group of Chief Justices which prepared the Bangalore Principles of Judicial Conduct and related documents. He is the author of the Cambridge University publication, The Judicial Application of Human Rights Law (2002, 2nd edition 2017)