Constitutional incongruity

Print edition : February 26, 2010

Supporters of Rajapaksa celebrate his re-election, in Colombo.-ERANGA JAYAWARDENA/AP

THOUGH it has now been settled by the highest court of Sri Lanka that the second term in office of the re-elected President, Mahinda Rajapaksa, will begin on November 19, 2010, several questions relating to the issue remain.

The apex court communicated its opinion on February 2 on a request sought by the incumbent President. Rajapaksa is to take the fresh of oath of office and secrecy within two weeks from the date of commencement of his second innings.

What prompted Rajapaksa in the first place to seek the guidance of the Supreme Court on a subject that appears so obvious? Logic would demand that his second term commence immediately after he obtained a fresh mandate. But the Constitution of Sri Lanka proclaims otherwise.

Rajapaksa chose to seek the opinion of the apex court on the question of the actual date of commencement of his second term owing to differing views among legal luminaries on the relevant constitutional provision and a 2005 Supreme Court judgment interpreting the provision.

The incongruity was built into the Constitution thanks to the Third Amendment mooted by President J.R. Jayawardene in 1982 and can only be remedied by an appropriate constitutional amendment passed with a two-thirds majority vote.

Article 31 (3A) (d), as amended by the Jayawardene government, reads: The person declared elected as President at an election held under this paragraph shall, if such person:-

i) is the President in office, holds office for a term of six years commencing on such date in the year in which that election is held (being a date after such election) or in the succeeding year, as corresponds to the date on which his first term of office commenced, whichever date is earlier; or

ii) is not the President in office, holds office for a term of six years, commencing on the date on which the result of the election is declared.

The operative portion in the reference made by Rajapaksa to the apex court says, The opinion of the Supreme Court is sought on the question as to when my second term of office as the President of the Democratic Socialist Republic of Sri Lanka commences and ends having regard to the provisions of Article 31(3A)(d)(i) of the Constitution of the Republic.

The question as to when the term of an incumbent re-elected President begins arose since Rajapaksa chose to hold the presidential election two years before the completion of his first term under the powers vested on him by the Constitution. The Third Amendment to the Constitution empowers the President to hold elections at the end of four years of his six-year term. As per the amendment, if the incumbent President is re-elected, his term of office will commence at the end of his first term. However, if the person elected is anyone other than the sitting President, such candidate will hold office for a term of six years commencing on the date on which the result of the election is declared.

This interpretation of the amendment was challenged in the Supreme Court in 2005. While disposing of a case on the date of commencement of office of the then President, Chandrika Kumaratunga (who was President from 1994 to 2005), the court ruled that her second stint commenced on the day she was declared elected.

The contention of the petition was that since her first term commenced in 1994, the second term must end in November 2006. The court ruled that her second term commenced in December 1999 and not in November 2000, paving the way for Rajapaksas election in 2005. He was pitted against Ranil Wickremesinghe, the candidate of the main opposition party the United National Party (UNP) then. The latest opinion of the Supreme Court in effect means that Rajapaksa will get five of six years of his first term, and six years commencing from November 2010 for his second tenure. The next presidential election will be due on or before November 19, 2016.

The Bench comprised Chief Justice Asoka de Silva, Justices Shirani A. Bandaranayake, Jagath Balapatabendi, K. Sripavan, P.A. Ratnayake, Chandra Ekanayake and S.I. Imam.

On February 1, when the case was taken up for hearing, Attorney-General Mohan Peiris argued that the second term of Rajapaksa would commence on November 19.

Presidents Counsel D.S. Wijesinghe, appearing for intervenient petitioner Mendis Rohanadeera, and Presidents Counsel Nihal Jayamanne, appearing for intervenient petitioner Sarath Kongahage, maintained that the date should be November 19, 2011, since the people had given Rajapaksa a mandate of six years for his first term in office and that it cannot be abridged or truncated because he had won a second term of another six years.

Legal experts hold divergent views on the Third Amendment and the 2005 judgment. One section is of the view that the second term in office will have to commence within a reasonable period after the election, while the other is of the view that since Rajapaksa was elected for a six-year term in November 2005, he is entitled to complete his first term before taking fresh oath for the second term.

Legal activist and university lecturer Rohan Edirisinha pleaded in the court that the President had to assume office soon after the election. Edirisinha, who is head of the legal and constitutional unit of the Centre for Policy Alternatives, a Sri Lanka-based think tank, is of the view that there are serious flaws in the latest judgment, both in process and in substance.

The Supreme Courts latest interpretation of the Third Amendment would mean that the gap between the just-concluded presidential poll and the next one will be seven, and not six, years as envisaged under the electoral laws of the country. Of course, it is an issue that the law-makers of Sri Lanka and the apex court, which has the powers to interpret the provisions of the Constitution, alone can address.

B. Muralidhar Reddy

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