President’s second term: Two options before the Supreme Court
There is, at present, much excitement over the question of when re-elected President Mahinda Rajapaksa’s second (and new) term begins. Various news reports concerning the matter have been published in the print media. It was reported once that the President had informed certain media heads that he would consult the Supreme Court to get an opinion on the matter. Certain other media reports have suggested that the President had informed he would take oaths on the 4 February, 2010.
Position under the Constitution of 1978
The Constitutional provisions concerning the question of when a re-elected President’s second term begins are quite clear, though illogical.
The relevant provision is Article 31 (3A)(d)(i), which provides that if the President is re-elected, he will hold 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’.
President Rajapaksa’s first term in office commenced on 18 November, 2005. The date that ‘corresponds to the date on which his first term of office commenced’, therefore, is 18 November 2010. Therefore, under a literal interpretation of the relevant Constitutional provision, President Rajapaksa’s second term would begin on 18 November 2010 (this seems to have been the line of argument adopted by late HL De Silva PC, in the 2005 case referred to below).
It is quite obvious here that the provision is immensely illogical, for the position is that a re-elected President seems to have been allowed, under the Constitution, to continue in office without taking a new oath upon re-election, until the date that ‘corresponds to the date on which his first term of office’ actually arrives. There have been various interpretations given to the reasons why late President Jayewardene brought about this provision through the 3rd Amendment to the Constitution in 1982, and the parliamentary debate itself had been an interesting and lively one (which were pointed out in an article titled ‘A Presidential Election in 2010?: The 3rd Amendment and the Continuing Constitutional Crisis’, at www.groundviews.org). Whatever those reasons may be, the provision is clear enough.
Position after the 2005 case
However, in 2005, former Chief Justice Sarath N. Silva interpreted the above provision to mean something else; and with it came down the reign of President Kumaratunga. In the judgment of the 2005 case concerning the question of when President Kumaratunga’s term ended, he held:
‘Commencement of the term in office of the President, signifies the commencement of the exercise of the executive power of the People on the authority of the mandate received at the election… Viewed from this perspective it is in accord with the basic premise of the Constitution that the term of office of the President should commence on the date of election…Article 31(3A)(d)(i) should be interpreted on the basis that President will hold office for the period of six years commencing on the date on which the result of the election is declared… ’
As many commentators have pointed out (in particular by Rohan Edrisinha in a recent interview accessible here) there seem to have been political factors which influenced this flawed decision, even though the final outcome of it seems to be much closer to common sense. However, according to the 2005 ruling, President Rajapaksa’s second term commences ‘on the date on which the result of the election is declared’. That would be, in the present case, 27 January, 2010.
Two choices before the Supreme Court
The choices before the Supreme Court are clear. 1) The Court could hold that the provisions of the Constitution are clear enough and that President Rajapaksa’s second term should commence on 18 November 2010, or 2) The Court could hold that the Constitutional provisions are clear but deeply flawed, that the interpretation given in 2005 is the correct one and that President Rajapaksa’s second term should be considered to have commenced on 27 January 2010.
The oath: when should it be taken?
The next issue would be the taking of the oath. Under the Constitution, the President should assume office within two weeks from the date of commencement of his term. But this would in turn depend on what that ‘date of commencement’ would be.
So, if the Supreme Court decides that it would accept option (1) above – i.e. to consider the date of commencement of the term to be 18 November 2010 – President Rajapaksa would need to assume office within 2 weeks from 18 November 2010. But, if the Supreme Court decides to go with option (2) above – i.e. to consider the date of commencement of the term to be 27 January 2010 – then, President Rajapaksa would need to assume office within 2 weeks from 27 January 2010. If then, the news report which suggested that President Rajapaksa intends to take his oath on 4 February 2010 should not pose any serious legal or constitutional problem.
Conclusion
The fundamental question, therefore, is not whether President Rajapaksa would have 6 or 8 years as his second term in office (as some seem to question). The question will be whether it is 6 years (under option 2 – as per the 2005 SC interpretation) or 6 years and 10 months (under option 1- as per the Constitution). The difference, in the final analysis, is simply of around 10 months. Â
It is however hoped that if the Supreme Court is consulted and it decides to hold in favour of the 2005 judgment/interpretation, that there would be an amendment of the relevant provision in question; for the apparent contradiction of these competing choices (i.e. of what the provision says and what the court says) is too glaring to be ignored by the politicians who overwhelmingly endorsed the 2005 judgment as a great victory for democracy in this country..
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Dear Kalana,
Answer to your fundemantal quetion (is not whether President Rajapaksa would have 6 or 8 years as his second term in office (as some seem to question)):
According to my common sense it is 6years term for MR begins from swor in date. His old term ends on the date he sworns in. There must not be a confusion between election calling date and the date of term begins. What it has to do with transfering of power?
The date of new term begins on the date of sworn in and has to be announced within 3 (or 6 more might change the validity, just like grama sevaka certificate) months after election results officially announced.
If president term is six years, the president has call for new election withing that period and is allowed to announce a new election after lapse of four years of his/her term. Old term ends at the momnet he sworns in.
How come our constitution so complicated than common man’s common sense? Whats the hurry Sarath N silva had to push Chandrika to sworn in on the day the election results was published? Why constitution cant give a precise period/ time to sworn in for new term?
What have our legislators done since 1978 without having a precise constitution?
They are paid millions of Rupees by poor tax payers of this country, apparently done nothing.
Use my common sense my Lord. I have a MBBS (Maison Baasta Badaama Supply
)
Kalana’s lucid and persuasive piece must be read in conjunction with Rajiva’s sharp response to Dr Nihal Jayawickrema in Transcurrents.
My worry though is not the legality but the perceived legitimacy of this or that course of action.
Dear Dr. Jayatilleka,
Thanks. I think given the contradiction, it would be difficult to decide what is ‘legitimate’.
One would prefer option (1), as it is the most obvious and plain meaning – as per the Constitution. Option 2 (i.e. SN Silva’s interpretation), in order to be considered a legitimate one, should have been followed up by a possible amendment of the provision in question; as it is somewhat absurd to have a clear provision which says one thing, and a SC opinion which says something else. As it is unlikely that there will be an amendment, may be it is better to stick to the Constitution.
However, the most ideal case would be an amendment to the provision, which is in line with the interpretation given in 2005. Also, it would be interesting if the SC directs the legislature to seriously consider amending the provision. Not sure whether the SC would go that far.
I think Parliament should have acted more responsibly and brought about an amendment in 2005 or 2006 to correct this apparant flaw/contradiction. Perhaps no one wanted to, for obvious reasons!
Let me ask a simple strait forward quation. Supposed the incumbant president delayed taking his oaths and if any chance he dies before taking oath, what would be consequences? will the new president (PM) will have to cover the remaining period of the current turm of presidency and the next six years as well?
The election was disreputable. Ruling party enormously violated election rules which include mis using govt assets, threatening to Election Officers and stopping their duties, mass scale vote rigging, thuggery , bribery, murdering opposition supporters, and Keeping Opposition leaders in house arrest during counting votes. Election commissioner’s speech after the election is a good example. In other words there should be a question about legitimacy of the election of the President.
Thank You for the excellent explanation.Awaiting with eagerness the SC Opinion tommorrow.
Well…
What’s the difficulty…
It seems very clear to me……
As I understand, the Constitution is quite clear on the situation that we’re considering. Situation is that of an imbecile president holding an election and then … (whoops, my vocabulary can be poor some times: is the correct word incumbent or imbecile?)… So anyways: when the incumbent president is not the winner (either because he didn’t contest or because he contested and lost), then when does the new elected president start his or her term?
That’s the situation we are in now, as I see it…..
and its answer is quite simple: he starts his new term immediately after the election!
Now of course if for some reason we were talking about the hypothetical case of that incumbent (or what ever) president winning, or of him being selected not but nevertheless getting himself appointed, then your post above is relevant. And in that case you’d want to realize that some cheeky presidents might try to do something like what this article suggests: twisting the Constitution to aim at starting the new term in November 2011, not 2010. Take a look at the last section of this http://www.dailymirror.lk/print/index.php/news/news/2327.html “then the oaths should be taken in November not of the same year but of the preceding year. In this case it should be 2011 November which gives him a total of eight years”.
It is illogical but that’s exactly what our population is vulnerable to being suckered into, as recent events also showed.
I think commonsense MUST prevail.
The President who was elected for a six year term for purely strategic political reasons went for a Presidential Election for a another six year term.
So by calling an election an election he as foregone his mandate to rule for six years. Otherwise if he loses then then winner will not be able to take office until the time runs out for the incumbent.
Therefore, when elected he gets elected for another 6 year term from the date of the election that is 26th January 2010 and ends on 25th January 2016. That is ALL.
So effectively out of possible 12 years president has ruled for 10/12. He got that because for strategic reason he went in for early elections.
Either we have to go by the 3 rd Amendment of JRJ or by the interpretation in the judgement given and accepted in 2005. The 2005 judgement needs to prevail.
I was in contact with Mr H.L de Silva P.C. on the day of the judgement and later that afternoon he emailed me his submission to court, and we compared notes. Although, the 3 Amendment has convoluted terminology, a clear mathematical tabulation shows that Chandrika had time till 2006. There is no ambiguity. This was detailed out by Prof Laksiri Fernando too in a parallel article to the newspapers. A top Colombo Prof of Maths agreed with my stepwise tabulation and added ‘the 2005 judgement was political decision and a way out of the political impasse’. Mr H.L de Silva confirmed to me that night ‘we may not seek a full bench review of the judgement’ probabaly as the cards were weighted heavily against her all round.
The 2005 judgement made no attempt to work out the maths (which clearly gives Chandrika another year) but gave the judgement based on the preamble – ‘supremacy of the mandate’ to be effective on the declation of the results – essentially on the principle that one cannot take a ‘rain cheque’ to be used later. Further, the critical date as per the Constitutiuon is the date of declaration of the result and no other.
However, due to the 2005 judgement, the second term will not be connected to the first term anymore if the incumbent wins – the terms stand apart. If the 2005 judgement was not there, then the first and second terms are very much connected, the day of declation of the results in the first term as the the pivotal date.
Leanie Meanie too has brought up another clear conflict that will occur in the case the incumbent loses but would still be able to saty on till a term of 6 yrs is up, although he is rejected by the voter. I also fully agree that highly paid legislators have been sleeping at the wheel since 2005 and not followed up on the judgement to make necessary changes.
You cannot have the cake and eat it too.
Sri Lanka President Gets Extra Year In Power
http://www.nytimes.com/reuters/2010/02/02/world/international-uk-srilanka-politics.html
Must be kidding; Rajapaksa’s second term starts in November 2010. He is to take fresh of oath of office and secrecy within two weeks from the date his second innings begins. He gets five of six years in his first term and six years commencing from November 2010 for the duration of his second tenure. The next Presidential election would be due on or before November 19, 2016. – Supreme Court. http://beta.thehindu.com/news/international/article99261.ece
Too long wait for new term. Elections should have called in October 2010. We are mixing up everything as usaual. Not very methodical way of doing things. Firsts finish what you started and then call for election then start the new term soon after announcement of election results.
MR also takes chance to stay in power. Constitution has given room for politians to abuse the system. We all though he has finished his work in four years, now it changed to five years. we voted for six years from 26jan 2010 not 7 years.
Step by step method. we are in soup. Why MR called for early elections?
I havent read constitution, but its common sense of people.
Every body talk about President’s term…what about the people…Read the Article 3 of the constitution…”In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and FRANCHISE.” Remember this Article is protected by the Article 83, which requires referendum for the amendment or for the repeal of this particular Article. The Constitution clearly says that the people should exercise their sovereignty through franchise every six year period. As such whether the President’s term begins in January 2010 or November 2010, the next Presidential Election to be held in January 2016. No one could read the 3rd Amendment overriding Article 3 of the constitution.
LAW is there to clarify commonsense.
So if there is NO LAW use commonSENSE.
If you have NO COMMONSENSE you have NO RIGHT TO GOVERN
Elections Commissioner Dayananda Dissanayake yesterday (February 3) launched a scathing attack on major political parties for what he called the gradual deterioration of political culture in the country. He asserted that politicians were the bane of the country.
Dissanayake said that the rot started with the introduction of the 1978 Constitution of the Second Republic of Sri Lanka. Since then there had been a general deterioration of standards, he said emphasising that the vast majority of those elected to Parliament after 1978 could not be compared with their predecessors. “There aren’t gentlemen in politics today,” he said.
He blamed the major political parties for carrying out mud slinging campaigns against each other. Responding to media queries, he acknowledged that the country could not expect major political parties to behave at the forthcoming parliamentary polls.
Commenting on a recent statement attributed to Rehabilitation Minister Risath Bathuthudeen that the election staff had purposely left out some votes marked in favour of the President, Dissanayake said that he had the politician removed from a certain place while the voting was on. He declined to elaborate.
He said that the 17th Amendment to the Constitution which envisaged the appointment of Constitutional Council and Independent Commissions could not be the panacea to the country’s ills. He said as a Buddhist he felt that the 17th Amendment as well as the 1978 Constitution of the Second Republic of Sri Lanka had not been introduced with good intentions. Anything that had been done with dishonourable intention would not succeed. He said that the country was experiencing never ending trouble due to politically motivated decisions.
He rapped political parties for adopting the 17th Amendment without a thorough study. He said that it was rushed through parliament with 215 of 225 MPs approving it, though glaring shortcomings exist in that piece of legislation.
He said that the government could not advice him regarding the dates for election. He said that he had not gone behind anyone asking for dates.
The Commissioner said that he could not initiate a re-count, though he would do it on a directive given by the Supreme Court.
Commenting on a complaint lodged by defeated presidential candidate General (retd) Sarath Fonseka earlier in the day with the Elections Secretariat, Dissanayake said that he would investigate the incident and take action against anyone responsible for any irregularity. Fonseka, accompanied by UNP deputy leader Karu Jayasuriya, Colombo District leader Ravi Karunanayake and Ratnapura District MP Thalatha Atukorale met Dissanayake. They told Dissanayake that 64 ballot papers had been detected in Ratnapura following the election.
Dissanayake told the media that this (Ratnapura detection) could be included in their election petition. He requested the media not to misinterpret his statements to suit their agendas. He dared the Opposition to prove his assertion that the election was free and fair as being wrong.
He said that anyone with grievances in relation to the recently concluded poll should go before the Supreme Court without appealing to the international community. He said that there was no point in calling press conferences to issue statements unless the Opposition initiated legal action.
Yesterday’s press briefing attracted representatives from the British High Commission and the German embassy in the wake of the Opposition’s appeal to the international community to intervene in Sri Lanka.
He said that there was no need to annul polling at any of the polling booths due to violence. He revealed that some of those who claimed that they were not allowed to enter counting centres were later found to have even signed the register. In keeping with an understanding among the Elections Commissioner, the IGP and political parties, agents of political parties were allowed to accompany ballot boxes from polling booths to counting centres.
Read full Article: Dayananda Dissanayake slams politicos, 1978 Constitution
Says 17th Amendment no panacea for country’s ills
link: http://www.island.lk/2010/02/04/news5.html