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| Sunday, 7 August 2005 |
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Constitutional position of Presidential election Two oaths needed to meet ambiguity in third amendment Point of View by Prof. Laksiri Fernando
There cannot be any doubt that the next presidential election should be in 2006 and not 2005, if one interprets the provisions pertaining to the matter strictly by the letter and the meaning of the August 1978 Constitution, as revised by the Third Amendment of August 1982. It is the Third Amendment that has created certain political concerns about the democratic character of holding the next presidential election after almost seven years since the last one held was in December 1999. However, there is nothing much that the Commissioner of the Elections could do about it, since the provisions of the Constitution are very clear and the democratic deficit resulting from the situation cannot be corrected unless the constitutional provisions are changed. To be precise, the Third Amendment allows any incumbent President to 'declare his intention of appealing to the people for a mandate to hold office, by election, for a further term' 'at any time after the expiration of four years from the commencement of his first term of office' and then 'the Commissioner of Elections shall be required to take a poll for the election of the President' under paragraph (3A) inserted to Article 31 of the Constitution. This is exactly what President J. R. Jayewardene did and what happened in 1982, and this is exactly what President Chandrika Kumaratunga did and what happened in 1999. As we all know both the incumbent Presidents also won the elections in 1982 and 1999 respectively. Second Term Then the question arises as to when would the second term commences of the incumbent President since an election under the Third Amendment is obviously held before the normal expiration of the first term. Does the second term commence 'on the expiration of the term of office of the President of Office' or 'forthwith, but not later than two weeks from the date on which the result of such election is declared?' Both are stipulations in the case of normal presidential elections as provided in the revised Article of 31(4) and 31 (4)(b) respectively, first in the case of 'where the President in office is a candidate and is re-elected' and second 'where the President in office is not a candidate or is not re-elected'. However, these provisions do not apply when an election is held under the provisions of the Third Amendment. There are completely different provisions applicable on the date of commencement of the term of the president elected when an election is held under the Third Amendment. First we may consider the position of the commencement date, if the incumbent president is not elected, to place the matters in correct perspective. The inserted section (3A) (d) (ii) by the Third Amendment makes it fairly clear as follows: 'The person declared elected as president at an election held under this paragraph shall, if such person 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.' Even here, in the case of a different candidate is elected as President, the commencement date occurs not on the date that the new President takes oath but 'on the date on which the result of such election is declared.' However, if the incumbent President is elected, the commencement date of the second term of office is provided in the inserted section (3A) (d) (i) to article 31 by the Third Amendment as follows: 'The person declared elected as President at an election held under this paragraph shall, if such person 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, which ever date is earlier.' One may find the above paragraph to be unnecessarily a rigmarole, but not ambiguous. The Sinhala version of the Amendment is clearer which is the final authoritative version of the constitutional interpretation. However, two important principles are clear in the provisions. First, the second term of office commences on such date 'as corresponds to the date on which his first term of office commenced.' There is no reference at all to the date of the oath taken. There cannot be any doubt that the corresponding date in the case of President Kumaratunga is 12 November. Second, the term should commence 'in the year in which that election is held or in the succeeding year, but being a date after such election.' When the two principles are taken together, it is very clear that the corresponding date (12 November) after the election (21 December 1999) was in the year 2000 and not in the year 1999. Therefore, the second term of office should have commenced on 12 November 2000 and not before. One may try to argue that the phrase 'whichever date is earlier' indicates to 1999 and not to 2000, but that argument cannot be correct since the provisions clearly stipulate to a date after the election and not before saying 'being a date after such election.' Ambiguity There is no doubt that the Third Amendment has created an unnecessary ambiguity between the 'date' of commencement of the term' and the 'assumption of office by oath,' when an election is held under that amendment and when the incumbent President is elected to that position. This ambiguity is enlarged when there is a considerable gap (more than two weeks) between the 'date of the results of election is declared' and the 'date of commencement of the second term' as per the provisions in the Amendment. This is how the whole debate over the so-called unnecessary oath taking in December 1999 and the so-called secret oath taking in November 2000 has arisen. It is the opinion of the present author that two oaths in fact were necessary in 1999 and in 2000 because of the ambiguity of the constitution as a result of the third amendment. There is obviously a contradiction between the provisions in the third amendment and article 32 of the constitution pertaining to the Assumption of Office. The third amendment, as it was placed before parliament in such a hurry, obviously did not carefully look at the possible contradictions. According to the fourth schedule of the constitution, the President should 'solemnly declare and affirm' to 'discharge the functions of the office' in 'accordance with the constitution.' According to article 32, 'the person elected or succeeding to the office of President shall assume office upon taking and subscribing the oath or making and subscribing the affirmation, set out in the fourth schedule.' It is not provided in the third amendment that when an incumbent President is elected under the provisions of (31A) inserted, whether that President should or should not take oath immediately after the election or wait until the commencement date of the second term. However, article 32 (un-revised) makes it somewhat mandatory for 'the person elected' to take and subscribe the oath. In my personal opinion, article 32 should have been revised to make it clear that oath is not necessary if the first term of office continues and if the commencement date occurs at a later date. Clarity However, there cannot be anything wrong in a President taking an oath after an election, and there is no provision whatsoever to consider that oath is equal to the commencement of the term. In my opinion, the 'commencement date' and the 'assumption of office' are linked, but two different things in the present constitution. These two are linked, because they are parts of the same process. But they are two different things, because that is the way those are defined in the constitution, and particularly after the obnoxious third amendment. However, article 38 makes it mandatory for a President to 'assume office' after the 'commencement of his term of office.' Therefore, when the second term of office of President Kumaratunga constitutionally commenced on 12 November 2000, she should have formally assumed duties in that office. Article 38 does not directly state, however, how the President should assume duties. The following is what, the relevant section of article 38, provides on the subject. 'The office of President shall become vacant if the person elected as President wilfully fails to assume office within two weeks from the date of commencement of his term of office.' The stipulated time frame for the assumption of duties in the original constitution was 'one month.' It was the third amendment that reduced the time frame for 'two weeks.' And it is article 32 that stipulates the assumption of duties in the form of oath under the fourth schedule. This could have well been done at a simple ceremony on the wish of the President, and also given the fact that a previous oath had been taken after the election in December 1999. What made two oaths necessary, in my opinion, is the ambiguous and contradictory nature of the revised article 31 under the third amendment and the unrevised nature of article 32. What is important here is whether the President has taken an oath between the 12th and the 26th November 2000 'before the Chief Justice or any other judge of the Supreme Court.' It is also important that whether this assumption of office or oath has been communicated to the Commissioner of Elections. Even if there has been no oath taken in November 2000, that anomaly cannot possibly alter the commencement date of the second term of the incumbent President so elected under the Thirteenth Amendment. The date of commencement and the conclusion of the second term of office of an incumbent President elected under the Third Amendment are so clear in the provisions of the constitution. |
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