The Sri Lanka Supreme Court on Tuesday made a determination on the opinion sought by the re-elected President Mahinda Rajapaksa that his second term in office would commence on November 19, 2010. He is to take fresh of oath of office and secrecy within two weeks from the date his second innings begins.
In effect, this would mean that Mr. Rajapaksa — who won the Presidential election held on Jan 26, by a massive majority of over 1.8 million votes against the former Army Commander and common opposition nominee, General (Retd.) Sarath Fonseka — would get 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 November 19, 2016.
Mr. Rajapaksa chose to seek to the opinion of the Supreme Court on the question of the actual date of commencement of his second term due to differing views among the legal luminaries on the relevant Constitutional provision as well as a 2005 Supreme Court judgment interpreting the provision.
Early election triggers doubt
The doubt on the issue as to when the term of an incumbent re-elected President begins had arisen since Mr. Rajapaksa chose to advance the presidential election two years ahead of his first term as per the powers vested in him under the third amendment to the Constitution mooted by the then President J.R. Jayawardene in 1982.
The Third Amendment to the Constitution empowers the President to hold elections at the end of four years of the six-year term. According to the Amendment if the incumbent is re-elected, the term of office of such candidate would commence at the end of his first term. However, if the person elected is other than the sitting President, such candidate would hold office for a term of six years commencing on the date on which the result of the election is declared.
The interpretation of the Amendment was challenged in the Supreme Court in 2005. The Court ruled while disposing of a case on the date of commencement of office of the then President, Chandrika Kumaratunga, held that her second stint commenced from 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 Mr. Rajapaksa’s election in 2005. He was pitted against the main opposition United National Party (UNP) candidate, Ranil Wickremesinghe.
On Monday a seven-judge Bench of the Supreme Court took up the reference made by President-elect Rajapaksa, seeking the opinion on the question as to when his second term of office as President would start and end.
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.
Attorney General Mohan Peiris with Deputy Solicitor General Jayantha Jayasuriya and Senior State Counsel Nerin Pulle and A.H.M.D.Nawaz maintained that the date the President has to assume office as November 19, 2010.
Don't truncate people's mandate, say President's Counsel
President’s Counsel D.S. Wijesinghe appearing for intervenient petitioner Mendis Rohanadeera and President’s Counsel Nihal Jayamanne appearing for intervenient petitioner Sarath Kongahage maintained that the date the President has to assume office as being November 19, 2011. They contended that the incumbent President sought the mandate from people for a further term of office of Presidency for six years.
They argued that the people had given him the mandate of first term of his office for six years and that it cannot be abridged or truncated. Crishmal Warnasuriya appearing on behalf of the Janatha Vimukthi Peramuna sought permission from the Court to submit a written submission within 24 hours from Monday. However, the Court informed him that it had to make a determination forthwith as sought for in the reference.
University Lecturer Rohan Edirisinha appearing in person contended that the date the President has to assume office is soon after the election. He pleaded that this was a matter of public interest and the determination of Court should be made public.
President Mahinda Rajapaksa in his reference sent to the Supreme Court had said: “Whereas I was elected to the office of President of the Democratic Socialist Republic of Sri Lanka on 18th November 2005 and duly assumed office as President on 19th November 2005 being my first term of office;
“Whereas I after expiration of 4 years from the commencement of my first term by Proclamation issued in terms of Article 31 (3A)(a)(i) of the Constitution of the Democratic Socialist Republic of Sri Lanka, declared my intention of appealing to the people for a mandate to hold office, by election for a further term.
“And whereas, in pursuance to such Proclamation, the Presidential Election was held on 26th January 2010; And whereas the Commissioner of Elections declared that I was duly elected to the office of the President on 27th January 2010; And whereas I am required by Article 32 of the Constitution of the Republic to assume office as President upon taking and subscribing the affirmation set out in the Fourth Schedule before the Chief Justice or any other judge of the Supreme Court;
“And whereas Article 38 of the Constitution of the Republic states that if I as the elected President willfully fail to assume office within two weeks from the date of commencement of my term as President I suffer the peril of my office as President becoming vacant; And whereas having regard to the aforementioned I am of the opinion that an urgent matter of public importance has arisen in relation to the date on which I should take the oath of office to commence my second term as the President of the Republic;
“And whereas, in pursuance of the authority vested in me by Article 129(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka, I make the following reference seeking an opinion, determination and Report by the Supreme Court to be submitted to me on or before 2nd February 2010;
“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”.
Differing legal views
Legal experts had differed in their opinion on the Third Amendment and the 2005 Supreme Court verdict. One section is of the view that the second term would have to commence within a reasonable period after the election. Another section believes that since Mr. Rajapaksa was elected for a six-year term in November 2005, he is entitled to complete his first term and than take fresh oath on the basis of the latest endorsement from the people.
Rohan Edrisinha, Head of Legal and Constitutional unit of the Centre for Policy Alternatives (CPA - a Sri Lanka based independent NGO think tank) is of the view that there are serious flaws in the judgment, both with respect to process and substance.
“A decision of the country’s highest court of law, the court charged with the responsibility of constitutional interpretation, must be judged and assessed not by the criteria of outcome or conclusion alone, not on the basis of its popularity, but on other criteria —fidelity to the Constitution, the court’s reasoning, the process by which the case was conducted, and whether at the end of the day, whether one agreed with all aspects of the judgment or not, whether one “lost” the case or not, whether justice was done and was seen to be done,” he says.
Kalana Senaratne, another legal expert writing in Groundviews (http://www.groundviews.org/) — a Sri Lankan citizen journalism initiative — prior to the announcement of Mr. Rajapaksa’s victory, says, “When does his (Mr. Rajapaksa’s) 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’).