When will the President’s
second term end?
By P Rajanayagam
Election fever is gripping Sri Lanka even though it is not certain that the presidential
election will be held this year as demanded by the political opponents of the incumbent
President Chandrika Kumaratunga. The main political parties have announced their
potential candidates with billboards and posters depicting the pictures of the rivals
dominating the landscape of the main cities.
The governing coalition has nominated Prime Minister Mahinda Rajapaksa as its candidate,
and the main opposition United National Party has nominated its leader Ranil
Wickremesinghe as its candidate.
For months, dominating the political discourse has been the dispute whether the
presidential election should be held this year or towards the end of 2006.
Sri Lanka's Buddhist monk political party Jathika Hela Urumaya, which also has declared its
intention to field its own presidential candidate, has gone before the island’s Supreme Court
seeking a determination that the election should be held this year.
Mr.Maithiripala Sirisena, General Secretary of the Sri Lanka Freedom Party (SLFP), has
intervened filing his own petition with the Supreme Court seeking a determination directing
he Commissioner of Elections to hold the next Sri Lanka Presidential election in 2006 on the
basis that the current President’s second term will terminate only at the end of next year. Mr.
Sirisena has said in his petition that Ms Chandrika Kumaratunge was elected President for
the second term on December 22, 1999 and took oaths later before the Chief Justice on 12
November 2000, and hence Chandrika Kumaratunge was entitled to hold office till
November 2006.
Meanwhile President Kumaratunga on her own volition has made a reference to the
Supreme Court invoking its consultative jurisdiction under Article 129 of the Constitution of
the Republic, seeking an interpretation on the provision relating to the date of the next
presidential election.
Constitutional dispute
Central to the ongoing dispute is the question as to when Chandrika Kumaratunga’s second
term as President of Sri Lanka will end. In addition to her political rivals, the dispute also
seems to have agitated the minds of some legal luminaries.
Relevant to this question is that despite the fact that she took her oath before the Chief
Justice on 22 December 1999 following her victory at the election, she also took another
oath of office at an unpublicised ceremony before the Chief Justice on 11 November 2000.
Under the Constitution, the President holds office for a fixed term of six years [Article 30
(2)]. The person elected or succeeding to the office of President shall assume office upon
taking the oath or making the affirmation in the prescribed form [Article 32(1) and Fourth
Schedule].
Many had presumed that President Kumaratunga would have to vacate office on 21
December 2005 because they thought that her six-year term would have commenced on 22
December 1999, the date on which she took her first oath. With the revelation that
President Kumaratunga had taken an oath a second time on 11 November 2000
accompanied by the assertion that she is entitled to remain in office until 11 November
2006, her political opponents have accused her of planning to “unconstitutionally extend
her office” by almost a year.
The opposition UNP and other political opponents of President Kumaratunga take the view
that there is no legal basis whatsoever for the President to take oath for a second time and
thereby extend her term by another year. They also take the view that the President’s oath
taking ceremony of 22 December 1999 should be the determining factor, and that the
swearing in ceremony on 11 November 2000 would not have the force of law. Their position
is that that the Presidential election must be held by November 2005.
According newspaper reports Chief Justice Sarath N. Silva had confirmed that he had
sworn-in President Chandrika Kumaratunga twice after the December 1999 presidential
election. Recalling the events of the time, the Chief Justice is reported to have said: at the
time of the 1999 election, President Kumaratunga was injured and there was the question
whether she was fit to hold office; if she did not assume office within 14 days after the
results were declared then according to the Constitution, she would be deemed to have
vacated the post of President; and in these circumstances, she assumed office in
December 1999 and addressed the nation.
The government has rejected the opposition claim legal invalidity of the alleged secret
swearing-in of President Chandrika Kumaratunga and “categorically” insisted that the
President’s term of office continued until the end by 2006. On the contrary former minister,
G.L. Peiris has said that it is clear that the President’s second term should end by the end
of 2005.
The question is whether the assertion that President Kumaratunga is entitled to remain in
office until 21 December 2006 is legally tenable or whether it is an attempt at an
unconstitutional extension of her office, particularly in the context of her having taken oath
on 22 December 1999.
Before going into this question, it may be well to remind ourselves about the way in which
governments in the recent past have tried to extend their terms of office and remain in
power by maladroit manipulation of the Constitution.
Constitutional manipulation
The United Front government under Mrs Sirima Bandaranaike was elected in May 1970 for
a term of five years. In the process of enacting the first Republican Constitution, which
came into effect on 22 May 1972, the government extended its term by two more years.
Article 42(5) provided, “Unless sooner dissolved, the first National State Assembly shall
continue for a period of five years commencing on the date of the adoption of the
Constitution by the Constituent Assembly.” The effect of this provision was to grant the
parliament, which had been elected in May 1970 for a period of five years, a further lease
of life for an additional two years. Since independence, this was the first time a government
had extended its own life under the pretext of constitutional reform. As a consequence, it
remained in power until July 1977 when general elections were held.
At the parliamentary election of July 1977, the United National Party (UNP) came to power
following a landslide victory securing 140 out of a total of 168 parliamentary seats under the
leadership of J R Jayawardene who became Prime Minister.
There is a popular misconception that the executive presidency was introduced via the
1978 Constitution. Just two months after the UNP came to power following the general
election, on 22 September 1977 the government introduced the Second Amendment to the
1972 Constitution which radically transformed the constitutional structure of the state from
an essentially cabinet system to that of an executive presidential system. In addition to
creating the executive presidency, the amendment provided that “the supreme instruments
of state power” were the President and the National State Assembly(NSA) whereas
previously the NSA was the only “supreme instrument of power”. The Amendment made
provision for J R Jayawardene, the Prime Minister, to assume office as Executive President
on 4 February 1978 for a period of six years. Thus Jayawardene who was elected in July
1977 as a Member of Parliament for six years imposed himself upon the country without a
mandate from the people as Executive President for an extended period until 3 February
1984.
Article 160 of the 1978 Constitution which came into operation on 31 August 1978 provided
that the person (J R Jayawardene) “holding the of President immediately before the
commencement of the Constitution shall be the first President and shall be deemed for all
purposes to have been elected as the President of the Republic and shall hold office for a
period of six years from 4 February 1978 which meant that his term of office would last until
3 February 1984. It was also provided that henceforth the term of the President shall
commence on the fourth day of February next succeeding the date of his election [Art. 31
(4)].
It would be self evident that what the architect of the Constitution envisaged was that
ordinarily a person elected as President would hold office for a fixed term of six years.
Maladroit steps
However, by 1980 it was becoming increasingly clear to Mr Jayawardene that he and his
government were declining in support among the people. But he was determined to remain
in power and in addition wanted to somehow retain the massive four-fifths majority in
parliament he had secured in the election of July 1977. To achieve this he took certain
maladroit steps which had grave constitutional implications.
Rather than waiting two more years during which time support from the people might
become further eroded, he wanted to submit himself to be elected as President before the
expiry of his term for which there was no provision in the Constitution. Therefore, he pushed
through parliament the Third Amendment to the 1978 Constitution which came into effect on
27 August 1982. It provided that “the President may, at any time after the expiration of four
years from the commencement of his term of office, by Proclamation, declare his intention
of appealing to the People for a mandate to hold office, by election, for a further term.” [Art.
31(a)(a)(i)] On the same day Jayawardene issued a proclamation declaring his intention of
seeking re-election for a second term.
The presidential election took place on 20 October 1982 which Jayawardene won. But it
should be noted that the leader of the main opposition Sri Lanka Freedom Party (SLFP),
was prevented from contesting at this election by reason of her civic rights having been
deprived in October 1980 on charges of alleged ‘abuse of power’ during her period of office
as Prime Minister during 1970 to 1977. It should be noted that the government under
Jayawardene secured the deprivation of her civic rights by enacting the First Amendment to
the 1978 Constitution which declared “null and void and of no force or effect in law” the
ruling by the Court of Appeal prohibiting the Special Presidential Commission of Inquiry from
proceeding with the inquiry against Mrs Bandaranaike.
Rolling the electoral map
Worse was to come following Jayawardene’s victory at the presidential poll. He proceeded
to keep the promise he made during his presidential election campaign “to roll up the
electoral map of Sri Lanka for ten years.”
Under the Constitution of 1978, parliament was to continue for six years from 4 August
1977, and therefore general parliamentary election was due to have been held by July
1983. However, the government under Jayawardene rushed through the Fourth
Amendment to the Constitution which provided that “unless sooner dissolved, the First
Parliament shall continue until August 4, 1989 and no longer, and thereupon stand
dissolved”. [Art. 161(e)] This amendment had the effect of extending the life of the
parliament elected in July 1977 for a period of 12 long years and enable the MPs to sit in
parliament without having to face an election until 4 August 1989.
The proposal to extend the life of parliament pursuant to the Fourth Amendment was put to
a referendum before the people which was held on 22 December1982. The issue put
before the voters was to amend the 1978 Constitution to approve the prolongation of the
term of the parliament until August 1989. The massive violence, intimidation and
widespread malpractices that characterised the referendum campaign were unprecedented
in the annals of the island. The leader of the SLFP, Mrs Sirima Bandaranaike said, “The
country has just witnessed the biggest fraud perpetrated on the people.” The terror and
fraud practised by the government in this referendum exceeds anything previously known in
this country,” said the Communist Party leader, Pieter Keuneman. The LSSP leader Dr.
Colvin R dr Silva said, It was not a referendum but a display of organised violence to cover
organised mass impersonation.”
However the results announced - 3,141,223 in support; and 2,605,983 against.-showed
that the people had approved the proposed extension of the life of parliament!
Constitutional Position
In this backdrop of constitutional skulduggery, it may be proper to ask oneself the question
whether President Kumaratunga is also seeking to extend her term of office
unconstitutionally.
Though we have had four Presidents since 1978, only J R Jayawardene and Mrs Chandrika
Kumaratunga have had the opportunity to serve two terms of office. The manner in which
Jayawardene served his two terms may illuminate the current controversy surrounding Mrs
Kumaratunga’s presidency and help to answer the disputed issues.
Pursuant to the Second Amendment to the 1972 Constitution, (and later confirmed by
Article 160 of the 1978 Constitution) Jayawardene was deemed to have been elected as
President on 4 February 1978 for a period of six years until 3 February 1984.
As noted earlier, the Third Amendment of 1982 to the 1978 Constitution enabled the
President who had served four years of his six-year first term to go before the people to
obtain a mandate for a second term. The presidential election took place on 20 October
1982 which Jayawardene won. However, despite being elected in October 1982,
Jayawardene took his oath of office for his second term only on 4 February 1983, and
served the full six-year second term until 1989. This was in accordance with Article 31(3A)
(d) of the Constitution which 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, 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 result of the election is declared.
In the case of Mrs Kumaratunga, the Presidential election took place and the results were
formally announced on 12 November 1994 and she assumed of office after being sworn-in
on the same day commencing her first term which according to the Constitution would have
lasted until 11 November 2000.
Just as Jayawardene did, Mrs Kumaratunga submitted herself to an election pursuant to
Article 31(a)(a)(i) of the Constitution almost a year before her first term came to an end on
11 November 2000.
Presidential election was held on 22 December 1999 and Mrs Kumaratunga was elected for
a second 6-year term from the date on which her first term would have come to an end,
namely 11 November 2000, and accordingly in terms Article 31 (3A)(d)(i) her second six
year term would continue having commenced on 12 November 2000 until 11 November
2006. In contrast however, if Ranil Wickramasinghe who contested the election on this
occasion had won the election, his six year term would have commenced on 22 December
1999 and lasted until 21 December 2005 in terms of Article 31(3A)(d)(ii).
Answering disputed issue
So far, the constitutional position as to when the second six-year term of Mrs Kumaratunga’
s presidency would come to an end appears to be clear, and that is 11 November 2006.
However, the currently raging controversy arises from the fact that she had taken an oath
of office following the election on 22 December 1999 before the Chief Justice. Some
persons therefore argue that her six-year second term should start to run from 22
December 1999 ending on 21 December 2005, and therefore the next presidential election
should be held before that date. There are those who for political or other reasons wish to
see President Kumaratunga out of office as soon as possible, and therefore argue that the
determining date in calculating her second six-year term is 22 December 1999.
It has been suggested that there was near-life-threatening situation as far as President
Kumaratunga was concerned (resulting from the assassination bid against her on 19
December 1999 just three days before the election which left her severely injured), and she
took the oath out of an abundance of caution.
However, the provisions of the Constitution appear to be quite clear: “The person declared
elected as President at an election held under this paragraph 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.” [Article 31 (3A)(d) (i)]
Does the fact that President, mistakenly or on the basis of legal advice which now turns out
to be wrong, or otherwise, took an oath almost an year earlier immediately following the
election on 22 December 1999 alter the constitutional position that the President shall “hold
office for a term of six years commencing on such date….., as corresponds to the date on
which his first term of office commenced ….” ?
Did the President, by reason of having taken oath on 22 December 1999, voluntarily
surrender part of her first term of office, and if so was she entitled to do so under the
Constitution ?
The answers to the two questions above would appear to be in the negative. According to
Rohan Edirisighe of the Law Faculty of the University of Colombo, “The wording of the
provision which uses the word "shall" and a reading of the entire provision suggests that the
provision is mandatory and that the President has no discretion where the date of
commencement of the second term is concerned.”
So what should one make of the oath taken on 22 December 1999? Firstly, it could not
have had the effect of truncating the period of the President’s first term. The oath taken,
from an abundance of caution or mistakenly or otherwise, could not have the effect of
overriding the mandatory provisions of the Constitution. President’s Counsel H L de Silva is
quoted as having expressed the view that the President continued to be in her first term
despite the oath taken on 22 December 1999.
It later emerged that the President took another oath before the Chief Justice on 11
November 2000, the date on which her second term commenced. In this context, the views
expressed by former Supreme Court Judge K.L.M.B. Kulathunga would appear to settle the
point in dispute. He is quoted as saying that the whole scenario had become more of a
“political crisis” than a “constitutional crisis”. Answering the question whether the swearing-
in on 22 December 1999 was held at the wrong time constitutionally, Mr Kulathunga is
quoted as expressing the view, “If that was so, then the second swearing-in was done on
the correct date. So she has rectified the mistake and I don’t see anything wrong in it.”
Conclusion
President Kumaratunga need not have taken an oath of office on 22 December 1999 as
she did. The fact that she took the oath on that date did not automatically truncate her first
term of office which under the mandatory provisions of the Constitution ended on 11
November 2000. Therefore her second six-year term of office commenced on 12 November
2000 in respect of which she took an oath before the Chief Justice on that date. Hence her
second term will terminate on 11 November 2006 which leads to the valid conclusion that
the next presidential election is not due until November 2006.