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| Sunday, 11 January 2004 |
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Features |  |
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2005 or 2006?: President's term of office by Dr. Reeza Hameed In recent press reports it has been alleged that the President has secretly extended her term in office until 2006 (see for example sunday Times 4.1.04). This article will examine the relevant constitutional provisions and suggest the author's conclusions pertaining to the issue.
The constitution of Sri Lanka having created the office of the President has provided that its occupant shall "hold office for a term of six years." (Article 31). The person elected to the office was expected by the constitution to hold office for the specific term so much so that the constitution even prescribed the time at which a poll for the election of the President shall be taken. Article 30(3) precluded a poll being 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.' But the Third Amendment to the Constitution permitted the President to call for an election for a further term at any time after the expiration of four years from the commencement of his first term in office. Nevertheless a President in his second term cannot invoke Article 31(3A) and will have to see through his term in full and there is no question of his seeking election for a further term of office. The Third Amendment was the subject of a challenge before the Supreme court by, among others, the Civil Rights Movement who claimed that it impinged on the powers of government as set out in the constitution and therefore required approval by the people at a referendum. The Supreme Court thought otherwise and held that rather than undermining sovereignty it actually enhanced it, and it even thought that the amendment sought to fill a casus omissus although in the writer's opinion none was apparent. The Supreme Court had the opportunity to delve deep into the constitution and provide guidance as regards the powers of government and the inter-relationship between the legislative and executive organs of government but it sidestepped that task. When does the term commence? Article 31(4) of the unamended constitution fixed as the commencement date of the term the 4th day of February the next succeeding the date of his election but the Third Amendment replaced it with a new provision that seems to have caused some confusion. Article 31(4) in its present form provides that the term of a person elected as President shall commence on the expiration of the term of office of the President in office. This date would apply to the term of a President elected after a poll has been taken under article 31(3) rather than Article 31(3A). The relevant portions of Article 31(3A) provide as follows: Art 31 (3)(a)(i) Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his first 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. (d) 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 such election is declared. Where an election has been held under Article 31(3a) it seems that a different commencement date would apply. Where the person elected is not the incumbent in office the constitution is clear as to the commencement date. It is the date on which he was declared elected. By virtue of Article 31(4)(b) once the result of the election is declared the term of the incumbent president shall be deemed to have expired. The matter is not so simple if the person elected is the person already in office. A re-elected President shall 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." The words "as corresponds to the date on which his first term of office commenced" qualifies the phrase "such date," which could be either in the year in which the election was held or in the succeeding year. The present incumbent in the office was elected in November 1994 and her first term would have commenced in November 1994. She called for elections under Article 31(3A) and was declared elected on 21 December 1999 and reportedly took her oath of office on 22 December 1999. As her first term in office commenced in November 1994 and the election for a further term was held in December 1999, because of the parenthetical clause the commencement date of the second term could not have been November 1999 because it was not a date after such election. That would leave November 2000 as the commencement date, being "such date... in the succeeding year as correspond to the date on which her first term of office commenced." The Sinhala version is clearer - instead of the expression 'such date' it says ohuge prathama dhura kalaya arambha vu dinata anurupa vana e varshayae (e chanda vimaseemen pasu va elabena dinayak vana)....' meaning 'on a date in the year in which the election was held corresponding to the date on which his first term office commenced (being a date after such election) or on such corresponding date in the succeeding year whichever date is earlier." The difference is that the Sinhala version does not use the word "such" in the first part of the clause making it very clear as to the exact date. Had the elections been held in October 1999 and had she been declared elected for a second term in October 1999 then her second term would have commenced in November 1999, as it would be a date after such election and it is the earlier of the two corresponding dates. Oath of Office A person elected as President is required to assume office before he may exercise the powers and functions associated with that office. A President elect must assume office by "taking and subscribing the oath or making and subscribing the affirmation, set out in the Fourth Schedule, in Sri Lanka before the Chief Justice or any other Judge of the Supreme Court." (Art 32(1)). The provision requiring an oath is not unique to the Sri Lankan constitution. The Indian constitution requires every President and every person acting as President or discharging the functions of the President, before entering upon his office, to make and subscribe an oath or affirmation. The term of office of the Sri Lankan President does not commence on the date he assumed office although a President cannot function in that office without first taking the oath of office. Where a person in office is not a candidate or is not re-elected, the newly elected President is required to assume office forthwith, but not later than two weeks from the date his election was declared. If he were to take the oath ten days after he was declared elected then his term would have already commenced when he took his oath. By comparison the Indian constitution provides that the President shall hold office for a term of five years from the date on which he enters upon his office. In the case of the first President he was deemed to have assumed office immediately upon the commencement of the constitution. In his case the need to assume office was not dispensed with; he was merely deemed to have assumed office and in fact he was required to take and subscribe the oath as soon as possible at a sitting in Parliament. It has been suggested that the President on being elected for a second term need not take an oath of office on the premise that she took an oath on assuming office in 1994 to uphold the constitution and that a second oath was therefore superfluous. The constitution does not support this suggestion and there is no dispensation given to a re-elected President from taking or subscribing the oath of office under article 32. The oath that the President took in 1994 was upon assuming her first term in office. A member of parliament is required to take an oath of office before he can sit or vote in Parliament. It is not open for a person who is re-elected to Parliament to argue that he would be exempt from the requirement of an oath because he took an oath before he sat in the previous Parliament. Likewise it is not open to the President to argue that it is unnecessary for her to take the oath when commencing her second term. A re-elected President seems to have been spared of the requirement to take his oath forthwith or not later than 14 days, but he would be in danger of falling foul of Article 38(1)(d), according to which the office of President would become vacant if the person elected wilfully fails to assume office, and allow Parliament to step in to fill the vacancy. Conclusion In the final analysis the President's second term commenced in November 2000 and would therefore end in November 2006. If she were to stay in office until 2006 it is only because the constitution permits, indeed requires, her to stay in office until November 2006. The President could not have assumed office in December 1999 because her first term did not end until November 2000, when her second term commenced. Any oath taken prior to that date would have been superfluous. (The writer is a Sri Lankan lawyer based in London. He obtained his Masters in Law) at Harvard, USA and PhD at the London University. He has his own law firm Hameed & Company in London). |
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The issue is an important one given the fact that the President enjoys
enormous powers under the Constitution. Not only is she vested with the
executive powers of the state but also so long as she holds office she is
immune from suit, has the power of granting pardon, to declare war and
peace and to preside at ceremonial sittings of parliament. It is a matter
of public importance to know when a President's term began and when it
ended.
