Constitutional query over Kumaratunga's second term

By Rohan Edrisinha

When President Chandrika Kumaratunga took oaths before Chief Justice Sarath Silva on December 22, 1999, I believe she was violating the Constitution. The Constitution required her to begin her second term on November 12, 2000. While I certainly have no objection to a politician voluntarily foregoing close to a year of his/her term of office, two questions arise:

1) Could she have taken oath for a second term before she was constitutionally mandated to do so?

2) Why was this done? Was there a reason, or was this done as a result of ignorance or mere indifference?

The Third Amendment of 1982.

The constitutional position is somewhat confusing as the idea of a fixed term for the Executive President which was the original idea of the framers of the Second Republican Constitution of 1978 was abandoned a few years later and changes introduced by the Third Amendment to the Constitution in August 1982.

The Constitution first provided for an American-style fixed term, though of six years, with the term of office beginning on the fourth of February following an election. However, in keeping with the Sri Lankan tradition of constitutional amendment for partisan purposes, President J. R. Jayewardene decided to introduce a constitutional amendment allowing a president who had served four of his six years of his first term of office, to go before the people early to obtain a mandate to hold office, by election for a further term.

Article 160 of the Constitution provided that Mr. Jayewardene's first term was deemed to have started on February 4, 1978. Mr. Jayewardene made use of the amendment and a presidential election was held on October 20, 1982 though his term extended until February 1984. What is significant is that Mr. Jayewardene, despite being declared elected on 21 October 1982, took his oaths for his second term on February 4, 1983. Why?

The constitutional provision which required him to do so is clumsily drafted, but a careful reading of it and the Sinhala and Tamil versions of it make it clear that Mr. Jayewardene's second term began on the date corresponding to the date of his election to his first term in the following year i.e. 4 February 1983.

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, 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."

Therefore, if Ranil Wickremesinghe had won the election, his term would have commenced on 22 December 1999 as per ii) of the provision, but the drafters of the Amendment had a different scenario in mind (hence a separate sub-section) if the incumbent President was re-elected. The results of the Presidential election of November 10, 1994 were formally announced on 12 November 1994 and the newly elected President Kumaratunga was sworn-in on that date. Thus Ms. Kumaratunga's second term should have begun on November 12, 2000. If this year's Presidential election had been held and the results announced before November 12, 1999, then President Kumaratunga if re-elected would have started her second term on November 12, 1999.

It is important to note that the constitution does not provide for an incumbent President who chooses to seek a second term early under the Third Amendment to the Constitution, to necessarily assume a second term in office after the entirety of the first six year term is over. For example if President Kumaratunga had called an election on December 21, 1998, as she could have, her second term would have commenced on November 12, 1999.

The fact that there could be a large time gap between a Presidential election held under the Third Amendment and the formal swearing-in of the President for a second term is envisaged by the Constitution. Article 31 4A (a) which provides for a fresh poll if a President who is declared elected dies before the commencement of the second term i.e. before the swearing- in for a second term.

Mandatory or directory?

The constitutional provisions introduced by the Third Amendment are somewhat confusing.

The awkward numbering of the new provisions is due to the desire to change a straightforward fixed Presidential term to one which gives a President some of the advantages enjoyed by a Prime Minister under a Parliamentary Executive model.

Mr. Jayewardene's constitutional manipulations for narrow personal gain, however seem to have created problems for future Presidents and their legal advisors. A careful reading of the poorly drafted constitutional provisions makes it clear however that President Kumaratunga's second term should have begun on 12 November 2000.

Can the President, notwithstanding that fact, voluntarily choose to take oaths for a second term earlier, thereby surrendering a part of her first term in office? The wording of the provision which uses the word "shall" and a reading of the entire provision suggest that the provision is mandatory and that the President has no discretion where the date of commencement of the second term is concerned.

Ignorance, incompetence or another reason?

While at one level the constitutional violation is not serious (the president loses about 11 months of a 144 month two terms in office), at another level, it is disconcerting. Was this done as a result of ignorance or by design? If it is due to ignorance it raises serious questions as to the competence of the Government's legal advisors, the Presidential Secretariat and indeed, the Chief Justice himself. The Chief Justice presides over the Supreme court which according to the Constitution has sole and exclusive jurisdiction with regard to constitutional interpretation.

Did Chief Justice Sarath Silva administer an oath which he was not permitted to under the very Constitution he has sworn to uphold?

The Constitution of a country is a norm setting document which sets out the basic structure of government, the powers and functions of the different organs of government and the relationship between and among such organs. It is meant to be the supreme law of the land. It appears to have been violated.

Does the Government have an interpretation different to the one outlined above? Was there another reason for the President taking her oath early? The government's legal advisors and the Chief Justice, it is respectfully submitted, owe the country an explanation. The writer is a senior lecturer at the Faculty of Law, University of Colombo