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It was a little confusing to read in the media during the past few days, a plethora of rather confucing views on the date of the Presidential Election and the role that the Elections Commissioner should play in selecting the month and the year for that election.

Should it be 2005 November or should it be 2006 November? This of course is a matter which must be decided in accordance with the Constitution. Any matter that raises a constitutional controversy is a matter which under Article 118 (a) should be left for the Supreme Court to decide. It is that body and that body alone which has 'jurisdiction in respect of constitutional matters'.

The question as to the date of the next Presidential Election falls within the ambit of several Articles of the Constitution. Namely, Article 30 (1) which says that the President "shall be elected by the people, and shall hold office for a term of six years". The question as to when that six years is to be reckoned, surely is a constitutional question.

Article 38 (1) deals with the conditions under which a President may be considered to have vacated his/her post other than at the end of the six year period. The question is whether the President could be considered to have vacated her first term in office before the completion of the first six year period by taking an extra oath.

This is a matter that require to be determined under Article 38 (1) of the constitution which provides six grounds upon which she could vacate her post as the President. Did the taking of an extra oath bring her within those six conditions is another constitutional issue.

If the President is deemed to have so vacated that post then. Article 40 (1) (a) deals with who fills in the post of the President during the interim period. That is yet another constitutional issue. Article 31 (4) and its proviso deals with the manner, and the time at which the President - Elect may assume the Presidential duties. That too is a constitutional question.

The present debate raises yet another issue. That is the role of the Commissioner of Elections. It is said that the Commissioner of Elections is a free agent who has untrammelled powers to appoint whatever date he may wish to hold the Presidential election.

It is also said that such a decision was not subject to any kind of scrutiny, whether judicial or otherwise and may even override any and all constitutional provisions. Whether the Election Commissioner in fact possess such a power is a matter to be determined, again under the constitution.

Noting that the holding of the election itself, whichever is the day ordained for that purpose, should conform with Article 30 (2), 31 (3) and the Third Amendment. Therefore it in effect becomes a constitutional question. Additionally, Article 104 of the constitution specifically says:

"The Commissioner of Elections shall exercise, perform or discharge all such powers, duties or functions as may be conferred or imposed on or vested in him by the law for the time being in force relating to elections to the office of President of the Republic and of members of parliament, and to referenda or by any other written law.'

This article clearly says that the elections to the Office of President of the Republic must be conducted under the Law "for the time being in force' which includes the Constitution. Therefore, the decision as to whether the election should be held in 2005 and 2006 becomes a constitutional matter.

Therefore the proper forum to determine such issues is the Supreme Court under Article 118 (a) and 120 of the Constitution and not exclusively in the Board Room of the Elections Commission. Clearly the Commissioner of Elections will be in violation of his constitutional powers under Article 104 of the Constitution if he or she were to act in violation of the Constitution.

Such a violation includes a violation of an opinion rendered by the Supreme Court under powers vested in that body by the constitution under Articles 4 (c), 118 (a) 120 and 129 of the constitution.

Therefore, it was correct that the President has sought to refer this matter to the Supreme Court under article 129 of the Constitution. Under that Article the Supreme Court has a consultative jurisdiction and the President has a constitutional power to seek advice from the Supreme Court. By such means, this matter could now be laid to rest and placed beyond the pale of controversy.

However, the controversy becomes a little more confounded when it is argued that the Commissioner of Elections was not bound to follow the advice of the Supreme Court, which amounts to vesting in him an ability to act independently and adversely to the advise of the Supreme Court, thus ignoring it. The suggestion is made that the Commissioner of Elections may, if he or she wishes, act in a way contrary to the advice given by the Supreme Court. It has been suggested that such advice was merely consultative and therefore has no binding effect.

But that might not end this matter, for any elector could then utilise the Writ jurisdiction available to the Court of Appeal under Article 141 of the Constitution to restrain the Commissioner of Elections from transgressing the constitution together in the light of the previous advisory opinion rendered by the Supreme Court.

It is unlikely that the Court of Appeal then faced with the request to issue a writ to restrain the Election Commissioner from flying in the face of the previous advisory opinion of the Supreme Court would refuse to make such order. This, although the Court of Appeal too could well depart from the previous advisory opinion of the Apex court.

However, the matter could then be appealed to the Supreme Court and it is most unlikely that it might depart from its own five Benched decision within such a very short space of time.

It will require a large measure of wishful thinking to hope that such a departure was even possible. To cut this whole process short, and to avoid these frequent visitations to the Apex court, it is hoped that the Elections Commissioner might choose to be guided by the advisory opinion of the Supreme Court.

That should without doubt put the whole debate to rest and the country to rest too.

- Dihan Hettige

www.ceylincoproperties.com

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