Media reports suggest that President Mahinda Rajapaksa might decide to hold an early Presidential Election in 2010. It is therefore interesting to look into some of the issues relating to the matter. Some of them are the following: i) the rationale behind the introduction of the 3rd Amendment, ii) interpretation of Article 31(3A)(d)(i) of the Constitution, and iii) the Supreme Court’s interpretation of that provision (see the unanimous judgment of the SC of 26 August 2005, in S.C. (FR) 278/2005).
The 3rd Amendment: why?
President Rajapaksa, upon completing 4 years in office in November 2009, can ‘declare his intention of appealing to the People for a mandate to hold office, by election, for a further term’ (Article 31(3A)(a)(i) of the Constitution). It is the discretion of the President. It enables a President, who has not yet completed his/her first term, to hold an election, to seek a fresh mandate, before the fixed term of 6 years comes to an end. All this is made possible by the 3rd Amendment to the Constitution.
The 3rd Amendment was introduced in 1982. The attempt had been, as the then Prime Minister Ranasinghe Premadasa stated, to make it possible for President JR Jayewardene to ‘seek a fresh mandate to continue in office for a second term at any time after he has completed 4 years of the first term of office’. ‘The object’, PM Premadasa further states, was to:
‘provide an opportunity for the people to express their views through the election of the President on the policies that the Government has followed, and which it proposes to follow without having to wait for a period of 6 years’ (see Hansard, Volume 21, No. 6, 26 August 1982, p. 542).
This was also the position taken by many others who stood up for the UNP during the debate. Some of them were Ministers Lalith Athuladmudali, Gamini Dissanayake and Ranil Wickremasinghe. The mood had been a resilient one. The UNP had been determined to get through the amendment without much hassle. They were in a position to do so. They had the necessary numbers in Parliament. Yet, they didn’t give anything away. At one point during the debate, MP Lakshman Jayakody had apparently tried to read out a letter written by certain Members of the House of Commons which seemed to have contained the concerns regarding President Jayewardene’s decision to amend the Constitution. At that moment, an energetic young Minister Ranil Wickremasinghe claimed, as reported:
‘As far as this House is concerned we are sovereign, the people of this country are sovereign and we are exercising that power which the people of this country have given us. We are not interested in what the House of Commons has to say or what the Britishers have to say. We ceased to be under the British in 1948. Some people, of course, kept their Maha Mudaliyarships and other means of licking their backs! We are not interested…’ (p. 552).
Such was the attitude, the mood, decades ago. The Amendment came through.
Also, the argument raised by the UNP in support of the amendment was similar to that raised by the then Attorney General Mr. Siva Pasupathy, viz.: that the Amendment ‘merely enables the President to seek a mandate before his term of office ends’ (as noted by the Supreme Court in its decision re. the 3rd Amendment, 23rd August 1982). The Supreme Court, in that case, dealt only with the question of whether the 3rd Amendment to the Constitution Bill required approval by the People at a Referendum. The Court held there was no such requirement.
Yet, the question needs to be raised here: why this discretion? Why should the President be given the power to seek a fresh mandate before his fixed term ends?
The Opposition Leader A. Amirthalingam stated, very correctly I believe, that it was principally about enabling the President to manoeuvre the timing of the election in a way that worked to the disadvantage of other possible candidates. In addition, there is the inherent danger of tying down an individual to the selection of a Presidential candidate. It goes against the fundamental principles of democracy and good governance. It even violates the notion of intra-party democracy (particularly of the ruling party); as a President alone could decide who the next presidential candidate is going to be from his/her party. This is what made MP Lakshman Jayakody exclaim: ‘We are opposed to Presidential rule, we are for Cabinet Government… the Sri Lanka Freedom Party is opposed to presidential rule’ (p. 548).
Given the history of the Presidential system, the track record of successive Presidents, and the enormous power a President wields, the answer to the above question is pretty clear today. Perhaps, clearer than it may have been in 1982. The 3rd Amendment was not so much about giving the people an opportunity to express their views. It was, and is, largely about prolonging one’s stay in power albeit forgoing 1 or 2 years of his/her term in office. It is about forgoing 1 or 2 years in return for a full 6-year term all over again. As MP Sarath Muttetuwegama summed up, the 3rd Amendment was introduced not because the then UNP Government had ‘suddenly got into a fit of generosity’, but because the realization was dawning that ‘the longer they wait the more difficult it is going to be to remain in power with the majority supporting them’ (p. 587). So too can be the case with any other government, with any other President. Even with President Rajapaksa.
Article 31(3A)(d) of the Constitution
It is here that a consideration of Article 31(3A)(d)(i) and (ii) is necessary. Before coming to the interpretation given by the Supreme Court in 2005, let us consider the provision in some detail. Hence, what follows immediately is not about the interpretation given by the Supreme Court (which will be considered later). Let us look at how the drafters of the provision wanted things to happen, and thereafter consider how former Chief Justice Sarath N. Silva seems to have wanted things to happen.
Article 31(3A)(d)(i) helps us (or rather should help us) identify when exactly the term of office of the newly elected (or re-elected) President commences. The provision states that the person so elected shall, if such person:
i) is the President in office, 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; or
ii) is not the President in office, hold office for a term of six years commencing on the date on which the results of such election is declared.
The intention of the drafters is clear enough. It goes like this: one date for the person who is re-elected (as per sub-para i), but another (different) date if the person is a newly elected one (as per sub-para ii). So, according to the intention of the principal draftsman of the Constitution (i.e. President Jayewardene), if in 2010 President Rajapaksa holds an election and wins, his term should have commenced as per sub-para (i). But if Ranil Wickremasinghe wins, his term would commence as per sub-para (ii). This is obvious enough, as there are two sub-paragraphs governing the matter.
To begin with sub-para (ii) – it is clear that if the person elected is not the President in office, then his/her term begins on the date on which the results are declared. Let us consider the hypothetical scenario of an election in November 2010 (the reason for choosing ‘November’ is given below). Let us imagine that the results of that election are declared on 17th November 2010. If Ranil Wickremasinghe wins, his term commences on 17 November 2010. This makes sense.
But according to the provision, what happens if President Rajapaksa wins? When does his term begin? The date should be, as per sub-para (i) – a date which corresponds to the date on which his first term of office commenced. So, the date should be 18th November (because his first term began on 18th November 2005). Furthermore, it should be 18th November in ‘the year in which that election is held’ (i.e. 18.11.2010), ‘or in the succeeding year’ (18.11.2011), ‘whichever date is earlier’. In our hypothetical case, President Rajapaksa’s second term would therefore begin on 18 November 2010 (as a consequence of the insertion of the words ‘whichever date is earlier’).
If this was not somewhat absurd, consider the following. Say, the results are announced on 19th November 2010. What happens then? The date that corresponds would still be 18th November. BUT the year changes. The first limb of Article 31(3A)(d)(i) becomes redundant in effect. Because then, what needs to be considered is the 18th of November of the ‘succeeding year’ – i.e. 2011.
So we arrive at the following absurd situation if one is to go by the intention of the framers of the Constitution and a plain interpretation of the words contained in the provision: (a) if results are announced on 17th Nov. 2010, the term commences on 18th Nov. 2010, BUT (b) if results are announced on 19th Nov. 2010, the term commences on 18th Nov. 2011 (i.e. the succeeding year)! [Note: I took the hypothetical case of an election in November to bring out this absurdity more clearly. However, if the election is held in January 2010 and if President Rajapaksa wins, his term should begin, according to the provision, on 18 November 2010].
Such provisions are largely a consequence of warped and skewed thinking. It is a classic case of nonsensical constitutional making. This is, unfortunately, not surprising. Or as the Supreme Court noted in 2005, the intention would have been to draft a provision which enabled President Jayewardene to ceremonially commence his term on 4th February 1983 (i.e. the ‘succeeding year’ and date which corresponds to the date on which the first term of President Jayewardene commenced, 4th Feb. 1978),
“in the ‘grandeur of the celebrations to commemorate the 35th year of the country gaining independence, an event hailed at that time as the dawn of a ‘golden era’”.
Supreme Court Judgment of 2005
So we arrive at 2005. The Supreme Court, headed by CJ Sarath N. Silva, gave this provision a different interpretation. The question was whether a Presidential election was to be held in 2005 or 2006. To answer this question, the Court had to decide whether President Chandrika Kumaratunga commenced her second term in November 1999, or November 2000. The relevant issues and the interpretation of the provision have been clearly, and correctly, laid down by Mr. Rohan Edrisinha (see his article titled ‘Constitutional query over Kumaratunga’s second term’, The Sunday Times, 2 Jan. 2000). Therefore, I would not go into detail.
However, this is what the Court held in 2005:
‘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… ’
In holding so, the Court believed that the best interpretative approach to adopt in this case was one which involved elements of ‘consequential construction’ – of ‘testing the literal meaning against the practical outcome’. The preference was for a meaning which leads to a sensible and just result complying with the statutory objective, rejecting the meaning which leads to an absurdity. Hence, if President Rajapaksa wins a Presidential Election early next year, he would commence on the date on which the result of the election is declared. And also according to the decision of the Supreme Court, it means that he would then be effectively forgoing almost two years from his first term in office.
But, is the objective of Article 31(3A)(d)(i) unclear? I believe it’s clear. Should not the Court have interpreted the provision, as argued in the case by late Mr. HL de Silva, PC, giving its words their ordinary meaning? Even though the interpretation of the Court infuses some sense into this otherwise nonsensical provision, or some logic into the seemingly illogical provision, is it not far removed from the intention of the drafters of the Constitution? More significantly, does not the Court’s interpretation alter, very significantly, the intended date of commencement of a re-elected President? If then, should the Court have gone so far as to interpret the provision in a different way?
Yet, when the decision was delivered in 2005, the major political parties welcomed this decision, some even claiming that it was a ‘democratic decision’ (especially the UNP). If then, is it not the duty of the Legislature to amend the provision accordingly, to bring it in line with the interpretation of the Supreme Court? Because it’s quite clear that the drafters meant something else when introducing this lousy provision into the Constitution. But this did not happen. Therefore, one is left with a Constitutional provision which clearly says one thing, and a judicial decision which gives it an entirely different meaning – however desirable, or logical, that interpretation may be.
Conclusion
Mr. Ranil Wickremasinghe recently claimed that the UNP will not allow anybody to change the SC decision, and allow the President to have an early election ahead and tag on the remaining two years, illegally. It would be interesting to know what the Government thinks about it; if and when President Rajapaksa declares his intention of holding an early election. It is a critical issue. An answer is necessary to clear all doubts as to what the Government, or even the SLFP, thinks about the provision (or even the judgment) today.
However, at the root of all this, we find ourselves stuck with a Constitution which consists of some deeply flawed, and obnoxious, provisions. So, to expect something sensible to come out from something nonsensical is a grave mistake. Moreover it is more dangerous, from the citizen’s perspective, to see politicians doing nothing to correct the apparent flaws contained in the document that sets out the basic law of the land. And during times in which some of the most significant provisions of the Constitution remain unimplemented – anything is possible.
[Authors note: This is an expanded version of an article sent to English media.]