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| Sunday, 8 February 2004 |
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Oath taking in December 1999 President's first term not truncated by P. Rajanayagam In the background of a series of attempts by politicians in recent years at manipulating the country's constitution for remaining in power beyond the terms for which they have been elected, it is not surprising that much political controversy has surrounded the question as to when Chandrika Kumaratunga's second term as President of Sri Lanka will end. In addition to her political rivals, it also seems to have agitated the minds of some legal luminaries. The controversy was sparked off with the publication of newspaper reports alleging that, despite the fact that she took her oath before the Chief Justice on 22 December 1999 following her victory at the election, she 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 allegedly secret oath a second time 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. It has been reported in the media that Prime Minister Ranil Wickremesinghe has taken the view that there is no legal basis whatsoever for the President to take oath for a second time and extend her term by another year. He is also reported to have said the media had also shown the President's oath taking ceremony of 22 December 1999, and no purported secret swearing in ceremony would have the force of law. His position is that that the Presidential election must be held by November 2004. According to 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 with 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. Govt. position The government has rejected the validity of the alleged secret swearing in of President Kumaratunga and 'categorically' insisted that the President's term of office should end by December 2005. Constitutional Affairs Minister and Cabinet spokesman G.L. Peiris said the government's position was clear that the President's term ended by the end of 2005 and that was what the people of the country had voted for, adding that, "Nowhere in the democratic world have we heard of a head of state taking oaths in secrecy. This is without parallel anywhere in the democratic world. This is one of the most important functions that the citizens of a country are interested in and how can it be done in secrecy." Minister Peiris added that Sri Lanka had enjoyed universal franchise since 1931 and the people were democratically mature. He said this had been continuously demonstrated by the fact that whenever a government tried to extend its term without the will of the people they were voted out of office at a subsequent election. 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. Jayewardene 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. Jayewardene, the Prime Minister to assume office as Executive President on 4 February 1978 for a period of six years. Thus Jayewardene 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 Constitutional which came into operation on 31 August 1978 provided that the person (J.R.Jayewardene) "holding of the 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 3) (a) (a) (1)). On the same day Jayewardene 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 Jayewardene 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 Jayewardene'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 Constitutional 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 Jayewardene 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 December 1982. 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 malpractises 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. de 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 skullduggery, 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. Jayewardene and Mrs. Chandrika Kumaratunga have had the opportunity to serve two terms of office. The manner in which Jayewardene 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) Jayewardene 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 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 Jayewardene won. However, despite being elected in October 1982, Jayewardene 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 year 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 Jayewardene 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 Wickremesinghe who contested the election on this occasion had won the election, his six year term would have commenced on 22 December 1999 ad 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 after 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, voluntary 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 Edrisinha 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 now emerges 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', Recalling that there were media reports when the President was sworn in 1999 for the second term, and answering the question whether the swearing-in 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." (Courtesy: Tamil Times) |
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