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 electionâ€¦ 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 electionâ€¦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 declaredâ€¦ ’
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 â€“ 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 â€“ i.e. to consider the date of commencement of the term to be 27 January 2010 â€“ 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.
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 â€“ 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 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..