– why the Supreme Court is wrong

Seven Judges of the Supreme Court are reported to have conveyed to the President their opinion that his first term of office will extend until 19 November 2010, on which day his second term will commence. Acting on this opinion, the President will presumably not take his oath or make his affirmation, which the Constitution requires him to do within two weeks of the commencement of his second term. He is no doubt aware that under article 38 of the Constitution, failure to assume office within the prescribed period renders the office of President vacant. The President would obviously have been advised that the opinion of the seven Judges is not binding on him or anyone else since it is not a judgment or determination of the court. Accordingly, the legal consequences of his decision not to assume office following his election on 26 January, including the validity of executive acts performed by his ministerial colleagues, have been left open for argument before a competent tribunal in appropriate proceedings. In my view, the opinion of the seven Judges is fundamentally wrong in law.

Last Sunday, in an article published in this newspaper under the title: “The President’s Second Term: When does it commence?”, I expressed the view that the relevant provisions of the Third Amendment to the Constitution lead inexorably to the conclusion that the first term of the President ended at the conclusion of the poll and the declaration of the result on 27 January, and that that was the moment in time when his second term commenced. Dr. Rajiva Wijesinha, Secretary to the Ministry of Human Rights and Disaster Management, joined issue with me in an article published in “The Island” on the next day, adding that he was deeply saddened by what I had written. He initially thought I had been misled by confusing language, as the late Mr H.L. de Silva had been a few years ago, since both Mr. de Silva and I did not have a “thorough knowledge of the English language” which would have made “the picture clear”. He then proceeded to state that I had been “disingenuous”; that “the bitterness of the Ghosts of Christmas Past” had affected me, and wondered whether my “once bright intellect” had “lost its shine”.

As a trained lawyer, I do not wish to engage in recrimination. It is sufficient to state that I have no personal interest in this matter since I do not occupy any public office. I have known President Rajapakse since 1970 when he entered Parliament as its youngest member and I joined the Government as its youngest Permanent Secretary, and he knows that I have always wished him well. As for “Ghosts of Christmas Past”, my critical approach to the 1978 Constitution is not because of any “bitterness” that I have towards its author, President Jayewardene, who was instrumental in depriving me of my civic rights many years ago. I accepted the imposition of civic disabilities as a purely political exercise on his part, and my relations with President Jayewardene before and after that event were extremely cordial. If I now seek to reaffirm my arguments that so saddened Dr. Wijesinha, I do so because of my absolute conviction that the course that the President has embarked on is one that is extremely perilous.

I participated in the meetings of the Select Committee of the National State Assembly that drafted the 1978 Constitution as an adviser to the two members of the Opposition, Mrs Bandaranaike and Mr Maithripala Senanayake. What President Jayewardene emphasized at every stage of the drafting process was his desire to establish a stable, fixed and irreducible term of office for the Executive, which he considered to be essential for the economic development of the country. He was also influenced by the smooth transition of power that takes place in the United States following the election of a new president. It was his desire that the term of every President should commence on Independence Day, 4th February, as his had in 1978 under an amendment to the 1972 Constitution. For this purpose, the poll for the election of the President would be taken not less than one month and not more than two months before the expiration of the term of office of the President in office, thus affording sufficient time for an orderly transition. The electoral process relating to the election of the President was deliberately programmed to achieve this result.

This well designed procedure was put in jeopardy in 1982 when, following the imposition of civic disabilities on Mrs. Bandaranaike and the consequent fragmentation of the SLFP leadership, President Jayewardene decided that the time was opportune to hold Sri Lanka’s first presidential election. The bill to amend the Constitution that was gazetted in July 1982 and tabled in Parliament two weeks later, sought to empower the President, at any time after the expiration of four years from the commencement of his first term of office, to declare his intention of appealing to the people for a mandate to hold office, by election, for a further term.

His desire to retain 4th February as the date of the commencement of his second term was reflected in a paragraph in the bill that the re-elected President will hold office for a term of six years

“commencing on such date in the year in which the 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”.

The bill proceeded to state that

“for the purposes of this paragraph, the first term of office of the first President shall be deemed to have commenced on February 4, 1978″.

When he scheduled his re-election for December 1982, it was abundantly clear that this paragraph had been ingeniously crafted to enable him to take his oath of office on 4th February 1983. This was confirmed by Prime Minister Premadasa when he presented the bill in Parliament. After emphasizing that President Jayewardene was “voluntarily reducing his term of office”, he referred to the above provision and said:

“what we are seeking to do is to provide that if the President is re-elected, his second term of office will begin on 4th February 1983″

In the unlikely event of losing the election, President Jayewardene had no further interest in a smooth transfer of power, because the bill provided that the term of office of the new President will commence, in accordance with international practice and commonsense, on the date on which the result of the election is declared.

It is evident, therefore, that this paragraph in the Third Amendment was designed solely for that first election in 1982. To employ it now outside that specific context, as the Supreme Court appears to have done, is to grant a President seeking premature re-election an extended first term in the event of his being re-elected. That, according to the Supreme Court’s determination of 23 August 1982, was not the intention of the law. Chief Justice Sharvananda observed that the proposed amendment “provides for a situation when the elected President may want to vacate his office and seek re-election prior to the expiration of his term of office”. He continued:

The President is thereby enabled to limit, of his own choice, his term of office. There is no compulsion on him to vacate the office at the end of four years. It is thus left to the discretion of the President who has been elected by the people to voluntarily cut short his period of office and seek a fresh mandate from the people.

He concluded by observing that, in order to discover the will of the people and their approval or disapproval of his stewardship, the President has to restrict “this irreducible period of the President’s office from six to four years.”

An election is conducted either because an office has fallen vacant or is about to fall vacant. For example, a general election cannot be held an year in advance of the dissolution of Parliament. The only reason why the Commissioner of Elections conducted a poll on 26 January was because the President, by proclamation, declared his intention “of appealing to the people for a mandate to hold office by election for a further term”. The mandate he sought and received was not a deferred mandate, but an immediate one. If the mandate is a future one, to be effective from November 2010, it should be sought at that relevant time.

That Sri Lankan law is not inconsistent with international law and practice is evident from an examination of the provisions of the Constitution that address the consequences of the death of a candidate at a premature presidential election. The rules set out with clarity when the first term ends and the second commences:

1. If the President in office dies at any time before the close of the poll, the election is deemed to be cancelled, the vacancy in the office of President is filled by Parliament, and the person so elected serves the remaining portion of the deceased President’s term. This means that when the poll is still in progress, the President’s first term continues.

2. If the President in office dies after the close of the poll and the count indicates that he has secured the highest number of votes, the result is not declared, and a fresh poll is taken. This means that the vacancy cannot be filled by Parliament. It cannot be so filled because the deceased President’s first term had ended upon the close of the poll.

It was at the close of the poll and upon the declaration of the result that the President’s first term ended and his second term commenced. The provision in the Constitution on which the President seeks to rely in order to extend his first term beyond the close of the poll and the declaration of the result is of very dubious validity. It is a well-known principle of interpretation that the literal rule should be departed from if its application would produce absurdity. In fact, Lord Scarman argued thirty years ago that the literal rule “must be exterminated”. In this instance, to ignore the explicit constitutional provisions that describe unambiguously when the President’s first term ends could well mean taking a great leap into anarchy.