A presidential election in 2010?

J.R. Jayewardene

By Kalana Senaratne

Speculation is rife. President Mahinda Rajapaksa might decide to hold an early presidential election in 2010. It would therefore be interesting to look into some of the related issues concerning the matter, such as: i) the rationale underlying the 3rd Amendment, ii) interpretation of Article 31(3A)(d)(i), 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 four 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). The discretion to hold an election is made possible as a result of 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 J.R. Jayewardene to ‘seek a fresh mandate to continue in office for a second term at any time after he has completed four years of the first term of office.’ ‘The object,’ he further stated, 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 six years’ — (see Hansard, Volume 21, No. 6, August 26, 1982, p. 542).  But 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 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.
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 answer to the above question is pretty clear today. The 3rd Amendment was not so much about giving the people an opportunity to express their views. It was, and is, about prolonging one’s stay in power albeit forgoing one or two years of his/her term in office. It is about forgoing one or two years in return for a full six-year term all over again (if the timing of the election is correctly manipulated).

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 realisation 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. Let us look at how the drafters of the provision wanted things to happen; and consider thereafter 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 — 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 Wickremesinghe wins, his term would commence as per sub-para (ii).

To begin with,  from 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 results of which are declared on November 17, 2010. If Ranil Wickremesinghe wins, his term commences on November 17, 2010. This makes sense.

But what happens if President Rajapaksa wins? When does his term begin? The date should be, as per sub-para (i) — one which corresponds to the date on which his first term of office commenced. So, the date should be November 18 (because his first term began on November 18, 2005).

Furthermore, it should be November 18 in ‘the year in which that election is held’ (i.e. 18.11.2010), or ‘the succeeding year’ (18.11.2011), ‘whichever date is earlier.’ In our hypothetical case, President Rajapaksa’s second term would therefore begin on November 18, 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 November 19, 2010. What happens then? The date that corresponds would still be November 18. BUT the year changes. The first limb of Article 31(3A)(d)(i) becomes redundant. Because then what needs to be considered is November 18 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 November 17, 2010, the term commences on November 18, 2010, BUT (b) if results are announced on November 19, 2010, the term commences on November 18, 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 November 18, 2010).

Such provisions are largely a consequence of warped and skewed thinking. It is a classic case of nonsensical constitution making. This is, unfortunately, not surprising. One wonders whether the provision was drafted simply to allow President Jayewardene to ceremonially commence his term on February 4, 1983 (i.e. the ‘succeeding year’ and date which corresponds to the date on which the first term of President Jayewardene commenced, February 4, 1978).

Supreme Court Judgment of 2005

So we arrive at 2005, and the SC’s interpretation. The question, as is well known, 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 Court 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… ’

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.’ 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 H.L 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 that far in trying to interpret the provision differently?

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 obnoxious provision into the Constitution. But nothing happened since 2005. 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

What does the government, or even the SLFP, think about the matter today? It is a critical issue. The citizens need an answer.

However, at the root of all this, one is stuck with a Constitution which consists of some deeply flawed, and obnoxious, provisions. 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.