Elected for a second term with a huge majority, Sri Lanka President Mahinda Rajapaksa has sought the opinion of the island nation’s Supreme Court on when to commence his term in office.
The question has arisen since Mr. Rajapaksa chose to advance the presidential election two years ahead of his first term as per the third amendment to the Constitution mooted by the then President J.R. Jayawardene and the 2005 Supreme Court’s interpretation of Article 31(3A) (d) (i) of the Constitution while disposing off a case on the date of commencement of office of the then President Chandrika Kumaratunga during her second stint.
Legal experts differ in their opinion on the third amendment and the 2005 Supreme Court verdict. One section of the Constitutional pundits is of the view that the second term of the re-elected President would have to commence within a reasonable period after the mandate of the people.
Another section believes that since Mr. Rajapaksa was duly elected as the President 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.
“The President would be strictly guided by the opinion of the Supreme Court. He has decided to refer the matter to the highest court in the country as he does not want to go against the letter and spirit of the Constitution,” a senior aide of Mr. Rajapaksa said.
The relevant provisions of the Constitution, as amended by J.R. Jayawardene’s Government, Article 31 (3A) (d), reads as follows:
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 case in 2005 pertained essentially to three substantive matters. They were:
a) the commencement date of President Kumaratunga’s second term;
b) the oath taking ceremony in December 1999;
c) the second oath taking ceremony in November 2000.
The court made a determination that the second term of Mrs. Kumaratunga commenced in December 1999 and not in November 2000 paving the way Mr. Rajapaksa’s election to the office of President. He was pitted against the main opposition United National Party (UNP) candidate, Ranil Wickremesinghe and was declared elected by a margin of less than two per cent.
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’).