Presidential elections:

Submissions made on legality of third term

In terms of Article 129 (1) of the Constitution, President Mahinda Rajapaksa sought the opinion of the Supreme Court to ascertain whether there is any legal impediment to prevent him from contesting a third term as incumbent President.

The Supreme Court decided to entertain written submissions on the matter and directed the Court Registrar to inform members of the Bar Association of Sri Lanka to make submissions.

The following is a written submission by Hemantha Warnakulasuriya PC and Jagath Wickramanayake, Attorney-at-Law to the Supreme Court.

In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

In the matter of a reference to the Supreme Court on or about 3rd November 2014, by His Excellency the President of the Democratic Socialist Republic of Sri Lanka under and in terms of Article 129(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka, for an Opinion on the questions stated in such reference.

On this 7th day of November 2014.

May it please Your Lordships.

1. On 17th November 2005, His Excellency, Mr. Mahinda Rajapakse (hereinafter referred to as 'His Excellency'), was appointed President of the Republic, by the election of the people.

2. Then again, on 26th January 2010, His Excellency was re-elected as President of the Republic for a second term, by the election of the people.

3. In the circumstances, His Excellency has sought the opinion of the Supreme Court under and in terms of Article 129(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka on the following:

In pursuance of the authority vested in me, and in the exercise of the powers conferred upon me, by Article 129(1) of the Constitution, I Mahinda Rajapakse, President of the Democratic Socialist Republic of Sri Lanka, do hereby refer the following questions to Your Lordships’ Court, for consideration and for an opinion by Your Lordships’ Court namely, a.Whether in terms of Article 31(3A)(a)(i) of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my term of office as President, am entitled to, after the expiry of four years from the date of commencement of my second term of office as President on 19th November 2010, by Proclamation declare my intention of appealing to the People for a mandate to hold office as President by election, for a further term; and b.

Whether in terms of the provisions of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, and was functioning as such on the date the 18th Amendment was enacted, am qualified to be elected for a further term of office.

The Submissions

4. It is most humbly and respectfully submitted to Your Lordships Court that the first issue to be addressed in this matter is whether His Excellency, can, if at all be appointed as the President of the Republic, having been appointed to such office on two occasions, both times by the election of the people.

5.Prior to the 18th Amendment, Article 31(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as “the Constitution”) stated that:

“No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People.”

6. Prior to the 18th Amendment, Article 92(c) of the Constitution stated that:

“Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless he is subject to any of the following disqualifications .....

(a).............

(b).............

(c) if he has been twice elected to the office of President by the People...”

6. It is respectfully submitted that, in terms of the above law, a person twice elected to the office of the President by the People shall be disqualified thereafter from being re-appointed for a third term to the office of the President of the Republic.

7. However, with the passing of the 18th Amendment to the Constitution Your Lordships will be pleased to see that Articles 31(2) and 92(c) were amended, removing the bar imposed on a President, elected by the people for two terms, from contesting for a third time.

Is Section 6(3) (A) of the Interpretation Ordinance, as amended applicable to the present Constitution?

8. It has been the position of certain public discussions that His Excellency, is legally barred from holding the office of the President of the Republic for a third term by operation of Section 6(3)(a) of the Interpretation Ordinance which reads thus:

“(3)Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected (a) the past operation of or anything duly done or suffered under the repealed written law ;”

9. Accordingly, in light of section 6(3)(a) of the Interpretation Ordinance it has been asserted that when His Excellency took oaths as the President of the Republic for a second time in 2010 he “suffered” a disqualification (under Articles 31 (2) and 92 (c) of the Constitution, very much in operation at the time) as contemplated under section 6(3)(a) of the Interpretation Ordinance, which perpetually continues unaffected by the 18th Amendment to the Constitution, preventing His Excellency from contesting for a further third term to the Presidency of the Republic.

This, My Lords, is a flawed interpretation of the law and this position is argued before Your Lordships on the basis of three legal grounds, namely,a. The proviso to Article 168 of the Constitution, which is Article 168(2), bars the application of the Interpretation Ordinance to the Constitution; b. Subject to and without prejudice to the above, in the event of finding that Section 6(3)(a) of the Interpretation Ordinance is applicable to the present Constitution, then in that event can it only become applicable to a situation concerning a repeal of a law, in whole or in part, and not otherwise; and c. Subject to and without prejudice to the above, in the event of finding that sections 2 and 15 of the 18th Amendment is in fact a repeal (and not an amendment) then in that event the effect of the repeal will prevent the operation of any disqualification suffered by His Excellency under the Constitution, prior to the 18th Amendment, preventing him from contesting for a third term of presidency of the Republic under the present Constitution.

Does Article 168(2) of the Constitution bar the application of the Interpretation Ordinance to the Constitution?

10. If one considers the manner in which the Interpretation Ordinance is used in the interpretation of an enactment one can observe that it has the effect of:

a. making the Interpretation Ordinance a part of such enactment; or b. Materially affecting or impacting on the enactment for which the Interpretation Ordinance is used.

11. For example section 8(3) of the Interpretation Ordinance states the following:

“(3) Where a limited time not exceeding six days from any date or from the happening of any event is appointed or allowed by any written law for the doing of any act or the taking of any proceeding in a court or office, every intervening Full Moon Poya day or Sunday or public.” holiday shall be excluded from the computation of such time. (vide Municipal Council of Clombo v. Piyasena 1980 (2) Sri.L.R. 39.)

12. The said section 8(3) is taken into account when computing the period of sixty days from the date of judgment as set out in section 755 (3) of the Civil Procedure Code for filing a petition of appeal. Undoubtedly, the practical effect in referring to the Interpretation Ordinance in order to decide a particular time frame under the Civil Procedure Code is to basically make the Interpretation Ordinance a part of the Civil Procedure Code.

13. However the question before Your Lordships is whether the Interpretation Ordinance can be used to interpret the Constitution when it has the effect of becoming a part or parcel of the Constitution or materially affecting the provisions contained therein.

14. In light of this context may Your Lordships be pleased to consider Article 168(2) of the Constitution which provides thus:

“168. (1) Unless Parliament otherwise provides, all laws, written laws and unwritten laws, in force immediately before the commencement of the Constitution, shall, mutatis mutandis and except as otherwise expressly provided in the Constitution, continue in force.”

(2) Save as otherwise provided in the Constitution, existing laws, written laws and unwritten laws are not and shall not in any manner be deemed to be provisions of the Constitution.

15.Observably, the Article 168(1) of the Constitution has set out the legal framework for all written laws promulgated before it to continue along with the qualification that it shall only be so unless the Constitution has expressly provided otherwise.

16. Immediately, thereafter one can see that the Constitution further states under Article 168 (2) written laws shall not in any manner be deemed to be provisions of the Constitution.

This would basically mean that Article 168 (2) of the Constitution states that one cannot treat any other written law to be part and parcel of the Constitution. The clarity in this legal position could not have been better. The word “shall” used in Article 168 (2) of the Constitution clearly makes out this fact, making the expression in Article 168 (2) of the Constitution a mandatory one. This interpretation given to the Constitution is reasonable and finds further force through the following.

17. Your Lordships sees that any addition or repeal to any single part of the Constitution can only be carried out with a two thirds majority of Parliament or a two thirds majority of Parliament along with a referendum.

18. The 18th Amendment to the Constitution not falling within Article 83 of the Constitution was introduced by way of two thirds majority of Parliament, as per the provisions set out in Article 82.

19. The Interpretation Ordinance is on the other hand, a law that has been introduced by way of a simple majority of Parliament.

The contrast therefore between the Constitution and the Interpretation Ordinance is more than clear. Whilst the former law requires a two thirds majority or a two thirds majority and a referendum to be introduced in the first instance or changed the latter only requires a simple majority of Parliament for that same process.

20. In that even, can one use the Interpretation Ordinance in a manner to materially affect the provisions of the Constitution.

21. It is submitted with respect to Your Lordships that the only manner in which the Interpretation Ordinance can be used for the Interpretation of the Constitution is where the Constitution of 1978 of Sri Lanka itself expressly states so.

22. It is respectfully submitted to Your Lordships that a mere reference in the Interpretation Ordinance, even if one argues that such reference is an express one, cannot suffice to allow one to make use of it to materially affect the Constitution and this argument finds further force in Article 168(2) of the Constitution.

23. It is the respectful submission to Your Lordships, that even if one assumes without conceding to the position that the Interpretation Ordinance can be used to interpret the Constitution this can only be so in a case where the Interpretation Ordinance is used in such a way that it will not materially affect the Articles of the Constitution.

24. Accordingly, the least for which one may use the Interpretation Ordinance is for the purpose of understanding meaning of the words within the Constitution(where the Constitution itself has failed to describe the meaning of a particular word) and not otherwise.

25. Undoubtedly, the importation of section 6(3) of the Interpretation Ordinance, to interpret the 18th Amendment to the Constitution goes beyond the exercise of understanding a word within the Constitution and therefore is an illegal act, since the said section 6(3) is materially affecting an express provision in a newly amended provision of the Constitution.

26. In the circumstances, it is respectfully submitted that the Interpretation Ordinance cannot be used to interpret the Constitution and therefore section 6(3)(a) has no application to the 18th Amendment of the Constitution.

27. Subject to and without prejudice to the above, in the event of finding that the Interpretation Ordinance does apply to the Constitution then in that event the following submissions are respectfully made to Your Lordships’ Court.

Is section 6(3)(a) of the Interpretation Ordinance only applicable to a situation concerning a repeal of a law, in whole or in part, and not otherwise?

28. It is clear that section 6(3)(a) of the Interpretation Ordinance only applies to a situation where a written law has been repealed either in whole or in part and not to an amendment.

This legal position was held in Don Edwin v. Commissioner for Workmen's Compensation (63 N.L.R. 83) by Weerasooriya J,.

What is a repeal of the law?

29. Accordingly, it is thought pertinent to consider the meaning of the words “amendment” and “repeal”.

30. In Don Edwin, Weerasooriya, J., observed that:

“The usual processes by which the legislature provides that existing law shall cease to be operative are amendment, repeal, suspension and expiry.

Amendment is the wider term, and may include a repeal as, for instance, where a law is repealed in part and added to in part-both processes being regarded as an amendment of the law.”

31. Your Lordships’ will be pleased to see that, where a law is only repealed partly, such repeal is not a repeal of a law, but an amendment.

32. Accordingly, in light of the dicta in Don Edwin, our law distinguishes between amendments and repeals.

33. An amendment includes several changes, in the way of a removal or suspension that can be made to an enactment, namely, repeal, suspension and expiry.

34.In fact,

a. Article 82(7) of the Constitution states as follows:

b. The 18th Amendment to the Constitution was an amendment that

“In this Chapter, “amendment” includes repeal, alteration and addition”; and was carried out in terms of Article 82.

35. In this connection it is also pertinent to consider the manner in which the Legislature has referred to repeals and amendments in other enactments. This would shed light to the practice by our Parliament as to what exactly amounts to a repeal and what is meant by an amendment.

36. For example at section 6 of the Citizenship (Amendment) Act of 16 of 2003, Your Lordships will be pleased to see that the side note states that “Repeal of section 9 of the principal enactment.” Thereafter, that particular section goes on to state that “section 9 of the principal enactment is hereby repealed.”

37. Furthermore, if one takes section 4 of the Apartment Ownership (Amendment) Act, No. 39 of 2003, a similar situation can be seen once again.

The side note to that section states that “repeal of section 3 of the principal enactment and the section states that, section 3 of the principal enactment is hereby repealed and the following section substituted therefor : -.....”

38. It is clear from the case of section 4 of the Apartment Ownership (Amendment) Act, No.39 of 2003, the word “repeal” was mentioned in the side note as oppose to “amendment” since the whole section of section 3 of the principal enactment was taken off the statute and a new section was substituted instead.

On the other hand in the case of Section 9 the Citizenship (Amendment) Act of 16 of 2003, once again it was a repeal since that whole section was removed without any reservations.

39. Even under Article 82(1) of the Constitution, one can see how the Legislature has sought to distinguish between the act of repeal and amendment.

40. Article 82 of the Constitution that states thus:

“(1) A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is inconsistent with any provision of the Constitution may be placed on the Order paper of Parliament without complying with the requirements of paragraph (1) or paragraph (2) of Article 82.”

41. The words “A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution.” has clearly made a distinction between an amendment and a repeal. If there was no distinction observed in the words repeal and amendment then in that event, the legislature could have easily said “a Bill which is not for the “repeal” (rather than amendment) of any provision of the Constitution or for the repeal and replacement of the Constitution.....

42. Accordingly, the words “A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution.” of Article 82 of the Constitution has specifically envisaged a situation where there is a mere change to a Article that is not totally removed from the Constitution or even a situation where there is a repeal to Sub Article of an Article and an addition thereafter to compliment such repeal.

It is respectfully submitted to Your Lordships’ that according to our law, these situations do not amount to a repeal of the law, in terms of our law and the practice of our Parliament, but is rather considered an amendment.

43. Accordingly, what can be discerned from the above is that the practice of our Parliament has so far been to consider an absolute nullification or removal of a full Section or Article from a statute or the Constitution respectively to be a repeal, and a change to a Sub Article of an Article or a Sub Section of a Section of an enactment to be an amendment and not a repeal.

44. The above stated line of thought as regard the distinction between a repeal and an amendment can also be found in N S Bindra’s Interpretation of Statutes (Katju M., and Kaushik S.K., N S Brinda’s Interpretation of Statutes. Butterworths: New Delhi 9th Edition (2002) at page 1412). Accordingly, it is stated therein that:

“When a section is being added to an Act or a provision added to a section, the legislatures commonly entitle the Act as an amendment. When a provision is withdrawn from a section, the legislatures call the Act an amendment, particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, legislatures label the Act accomplishing the result a repeal.”

45. Accordingly, what must be borne in mind is that, generally, an Article with several Sub-Articles or a Section with several Sub-Sections cannot ever be repealed by removing anything less than all the Sub Sections or Sub Articles within that Section or Article, respectively, since the Sub Sections and the Sub Articles will have the effect of impacting or complementing one another within that Section or Article.

46. This approach by Parliament, as to what is an amendment and what is a repeal of a Section or Article is clearly a sensible one.

How can one say that striking off a particular sub Section or a sub Article in a Section or Article as the case may be to be a repeal of that respective enactment?

47. In fact it is impossible to conceive in repealing an Article by affecting a mere change to one of its Sub Articles, since a repeal of a law cannot happen when certain other provisions that has a connection to the part which has been removed from the Constitution continues to be in force.

48. The sub-Sections or sub-Articles within a Section or Article forms the Section or Article and therefore having affected one particular aspect of Section or Article, by repealing a sub-section or sub Article of a Section or Article, respectively cannot amount to a repeal of a law in part as contemplated by section 6(3)(a) of the Interpretation Ordinance, since a partial change caused to a particular Section or Article in the enactment cannot make a drastic change that can cause a repeal but merely affect and /or impact on the existing nature and or effect of such Section or Article.

49. It is therefore respectfully submitted that the word “repeal” used under section 6(3)(a) of the Interpretation Ordinance, contemplates either striking off a whole piece of legislation (in which case it would amount to a total repeal of a written law) or a full Section or Article within the Statute or Constitution respectively (in which case it would amount to a partial repeal of a written law). However, where only a sub-Section or a sub-Article within a Section or Article, respectively, has been changed, then that would not amount to a repeal of that enactment but merely an amendment.

50. As regards the 18th Amendment, Your Lordships will be pleased to see that Section 2 contained therein states the following:

“The Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as the “Constitution”) is hereby amended in Article 31 thereof, as follows:

(1) by the repeal of paragraph (2) of that Article; and

(2)in paragraph (3A) (a)(i) of that Article— (a) by the substitution for the words “at any time after the expiration of four years from the commencement of his first term of office” of the words “at any time after the expiration of four years from the commencement of his current term of office”; and (b) by the substitution for the words “by election, for a further term.” of the following: “by election, for a further term:

Provided that, where the President is elected in terms of this Article for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected.”

51. Your Lordships’ sees that the said section 2 of the 18th Amendment has in fact taken off Article 31(2) from the Constitution and upon doing so has introduced certain new provisions, to compliment the repeal within that Article.

52. Therefore, the above said change in Article 31 does not have the effect of a repeal of a law, as contemplated by section 6(3)(a) of the Interpretation Ordinance, since it does not fully remove the existing Article 31 but merely makes certain changes within it.

In example, after the 18th Amendment Article 31 (3A) (a)(i) includes such words as “any subsequent term of office to which he may be so elected......” in order to accommodate a situation where the President intends to contests for the Presidency of the Republic, for a third time or even more.

53. Therefore, in terms of our law and the practice of Parliament, the repeal that has taken place within Article 31 is not a repeal of a law, as contemplated under section 6(3)(a) of the Interpretation Ordinance and as meant under our law, but an amendment since along with the repeal affecting the Sub Article of Article 31 there is an addition to that same Article to compliment the changes that have taken place within it.

54.Even in the case of the change caused to the Constitution by way of repealing Article 92(c), there is no repeal of the law (as contemplated under section 6(3)(a) of the Interpretation Ordinance) but an amendment, since that change is only to a part (or a Sub Article) of Article 92, and this change has been carried out to be in line with the amendment caused to Article 31of the Constitution.

55.The only way to contradict this position of the law would be by looking at the specific Sub Articles of the Constitution and consider if there is in fact no true and actual connection between the Sub Articles.

56.Of course, it is clear when one considers the sub Articles of both Articles 31 and 92 that there is a clear connection between the Sub Articles and therefore the changes introduced to Articles 31 and 92 of the Constitution is clearly an amendment and not a repeal of those Articles.

57.In those circumstances, it is submitted with respect that the provisions contained in section 6(3)(a) of the Interpretation Ordinance has no application to the issue at hand, since the 18th Amendment has no repealed Article 31 nor has it done so in respect of Article 92.

Does the effect of the repeal of Articles 31(2) and 92(c) of the Constitution bar the operation of any disqualification suffered by His Excellency under the Constitution (prior to the 18th Amendment)?

58. Subject to and without prejudice to the above, in the event of finding that sections 2 and 15 of the 18th Amendment is in fact a repeal (and not an amendment) then in that event the effect of the repeal will prevent the operation of any disqualification suffered by His Excellency under the Constitution, prior to the 18th Amendment, preventing him from contesting for a third term of presidency of the Republic under the present Constitution. 59. N S Bindra’s Interpretation of Statutes (Katju M., and Kaushik S.K., N S Brinda’s Interpretation of Statutes, [Butterworths: New Delhi 9th Edition (2002) from pages 1418 – 1420 has discussed in much depth the effect that results from the repeal of an enactment.

60. Accordingly, N S Bindra’s Interpretation of Statutes states at page 1419 that:

“....Whenever an Act is repealed it must be considered, except as to transactions passed and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. Repeal is not a matter of mere form but is of substance, depending of the intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal.

‘Repeal’ connotes abrogation or obliteration of a statute by another. Repeal is not a mere matter of form but one of substance, depending upon the intention of the legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part then it would be a case of total or pro tanto repeal.

61. It is respectfully submitted that what is important at this juncture is to seek the intention of Parliament and see what it intended at the time of passing the 18th Amendment, as this approach would very much clarify the position of the legislature as regard the retrospective application of that Amendment.

62. Accordingly, Your Lordships will be pleased to see the Hansard relevant to the passing of the 18th Amendment, as that will help one to find out the true intention of the Parliament, at the time of passing the 18th mendment.

63. Accordingly, the following are certain excerpts from the Hansard of 8th September 2010, of Vol.193-No.2.

64. The Hon. M.A.Sumanthiran (Page 203, Hansard Vol.193-No.2)

“… This Amendment that seeks to permit a person to hold the office of President for life also confers immunity for life on that person.

This Amendment will create this super human being not only out of the present incumbent. If the next president ascends to the throne at a tender age of 30, this will enable him to remain President for life, periodic elections notwithstanding.

I wish to ask the Ho. Members on the Government side, would you have supported such power to be concentrated on President Jayewardene or President Premadasa? Or are you under the impression that this amendment will give this power only to President Rajapaksa and to no one after him?”

67. The above speeches of the Members of Parliament shed much light on the intention of the Parliament at the time of passing the 18th Amendment. They bring to light the fact that the consequences of the 18th Amendment were clearly expected to affect His Excellency as well.

68. In light of the above and there being no clause which specifically excluded the application of the 18th Amendment to the fact pertaining to the position of the appointment and vacation oh His Excellency, it is respectfully submitted that the effect and consequences of the 18th Amendment, clearly applies to His Excellency as well qualifying him to contest for a third term of presidency of the Republic.

Conclusion

69. In the above circumstances it is respectfully submitted that the Supreme Court should answer the questions referred by the His Excellency Mr. Mahinda Rajapakse in the affirmative.

Lalith Abeysiriwardena Attorney-at-Law

Settled by - Ms. Mekala Madduma Bandara Attorney-at-Law, Jagath Wickramanayake Attorney-at-Law and Hemanatha Warnakulasuriya President's Counsel.