by C.A.Chandraprema Courtesy The Island

President Sirisena’s request for a determination from the Supreme Court as to whether he could remain in power for six years even after the 19th Amendment reduced the term of the President to five years has caused consternation in the pro-yahapalana camp and quiet glee among their opponents. One of the pioneers of the yahapalana project, university lecturer Nirmal Ranjith Devasiri, has reproduced on his facebook page the Colombo Telegraph report of Sirisena asking the SC whether there is any impediment to his remaining in power for six years with a cryptic message in Sinhala suggesting that they (the yahapalanites) were now completely naked before the people. Among those who made representations in the Supreme Court against Sirisena was the Centre for Policy Alternatives and the elections monitoring outfit CAFFE which were firmly within the yahapalana camp.

The President’s query addressed to the Supreme Court left no doubt as to what he had in mind. The query went as follows: “Whether, in terms of Provisions of the Constitution, I, as the person elected and succeeding to the office of President and having assumed such office in terms of Article 32(1) of the Constitution on 09 January 2015, have any impediment to continue in the office of President for a period of 6 years from 09 January 2015, the date on which the result of my election to the office of President was declared”. In the wake of the caterwaul of protest that this evoked, the President’s Media Office issued a statement claiming that the President was only trying to clear the confusion surrounding this matter by asking for a SC determination on the subject, but the wording of the query implies otherwise.

This is a very clear attempt on the part of the President to extend his term to six years once again after it was reduced to five years by the 19th Amendment. The 19th Amendment was brought for the purpose of abolishing the executive Presidency as Sirisena had promised at the 2015 Presidential election. When Jayampathy Wickremeratne and others took to the newly elected President Sirisena the original draft of the 19th Amendment, the President had barked at them “Mawa pambayek karannada hadanne?” (Are you trying to turn me into a scarecrow?) and he had chased them away. Thereafter, Sirisena and the JHU whittled down the 19th Amendment until there was nothing left except the establishment of the constitutional council to recommend appointments to key state posts and this reduction of the term of the President from six to five years. It was the JHU that surreptitiously included in Sirisena’s manifesto a clause saying that he would agree to constitutional changes only to the extent that a referendum would not be necessary.

Since there was no way to abolish the executive presidency without a referendum, all talk of abolishing the executive presidency ceased. Now with Sirisena’s move to claw back through judicial interpretation what he himself claimed to have voluntarily relinquished and with his own loyalists and opponents voting for it in parliament (only one vote against and one abstention with 215 votes for and six absent), the 19th Amendment is to be almost completely vitiated – which is why virtually all yahapalana stakeholders have roundly condemned Sirisena’s move.  The most immediate reason for President Sirisena to ask the Supreme Court for a determination is a comment made in passing by former President Mahinda Rajapaksa in a media release issued on 14 December 2017 about the local government election.

What gave Sirisena the jitters

In that media release, the former President had stated that the LG election would be the first in a string of elections leading up to the next presidential election which has to be held before 9 December 2019 in terms of the 19th Amendment. What the former President said in this regard was as follows. “According to the change effected by the 19th Amendment to Article 30(2) of the Constitution, the term of office of the President was reduced to five years. By the provisions of Section 49(1)(b) of the 19th Amendment, that change has been made specifically applicable to the incumbent President as well. Hence the term of office of the incumbent President ends on 9 January 2020. According to Article 31(3) of our Constitution, a Presidential election has to be held not more than two months and not less than one month before the incumbent President’s term of office expires. Hence the next presidential election will have to be held between 9 November and 9 December 2019. When the mandatory periods between the declaration of the election, calling for nominations and the subsequent period up to the poll laid down in the Presidential Elections Act of 1981 are taken into account, it is clear that the next presidential election process will have to begin by October 2019…”

This appears to have been the immediate trigger for the President’s query to the Supreme Court. The Attorney General who represented the government had argued in open court last Thursday that the President had been elected on 9 January for a term of office of six years and that this power emanated from the sovereignty of the people and that the 19th Amendment to the Constitution was promulgated and made operative only after the incumbent President was elected for a term of six years by the people. He said there cannot be retrospective effect unless it has been specifically made retrospective. The crux of the Attorney General’s argument is that the President had received a mandate from the people for a six-year term in office, and that any change in that would affect the sovereignty of the people. However, in his argument, the AG has ignored some important matters. Firstly, Section 49(1)(b) of the 19th Amendment states as follows: “49. (1) For the avoidance of doubt it is hereby declared that,– (b) the persons holding office respectively, as the President and Prime Minister on the day preceding April 22, 2015 shall continue to hold such office after such date, subject to the provisions of the Constitution as amended by this Act.”

The AG has not explained what Section 49(1)(b) means if it is not to be taken as making the 19th Amendment applicable to president Maithripala Sirisena as well. Section 3 of the 19th Amendment had repealed the earlier Article 30(2) of the Constitution and substituted in its place the following “The President of the Republic shall be elected by the People and shall hold office for a term of five years.” If the AG argues that the shortening of the term of the President does not apply to the incumbent President despite the transitional provision in Section 49(1)(b) of the 19th Amendment, because Sirisena was elected and sworn in before the 19th Amendment was passed, that puts many other provisions in this Constitutional Amendment in jeopardy. For example, the main limitation on presidential power imposed by the 19th Amendment is to make it mandatory for the president to appoint key officers of the state such as the Attorney General, Judges of the Supreme Court and the members of the independent commissions from among persons nominated by the Constitutional Council.

Does anything at all in 19A apply to Sirisena?

If the 19th Amendment does not apply to President Sirisena because he was elected and sworn into office before the 19th Amendment was promulgated, then it follows that he is under no obligation to follow the procedure laid down in the 19th Amendment in making appointments to key state offices and independent commissions either. However the President has already made appointments based on recommendations made to him by the constitutional council in accordance with the provisions of the 19th Amendment. Examples of this would be the present IGP and the Attorney General himself. One assumes that the President made these appointments in accordance with the 19th Amendment because of the transitional provision in Section 49(1)(b) of the 19th Amendment which clearly states that the incumbent president will hold office after the promulgation of the 19th Amendment, only in accordance with the provisions of the Constitution as amended by the 19th Amendment.

If the transitional provision in Section 49(1)(b) is deemed not to apply to President Sirisena, an anomalous situation will arise where the Constitutional Council and the independent commissions will be set up under the 19th Amendment but the President will be under no obligation to take any of the recommendations of the CC into account in making key state appointments because the president was elected and sworn in under the 18th Amendment and the 19th Amendment does not apply to him.  If we take Section 49(1)(b) of the 19th Amendment which has been reproduced above, the phrases used “For the avoidance of doubt it is hereby declared”; “the persons holding office respectively, as the President and Prime Minister”, “shall continue to hold such office after such date, subject to the provisions of the Constitution as amended by this Act.” do not leave any doubt whatsoever as to the fact that the President and Prime Minister now hold office only in accordance with the Constitution as amended by the 19th Amendment.

There is also another very important factor to be considered. After the August 2015 parliamentary election, a government was formed on the basis of the power sharing arrangement between the President and the Prime Minister laid down in the 19A.  If the SC accepts the AG’s interpretation of the Constitution, it will also have the effect of throwing the entire basis of the yahapalana power sharing arrangement into jeopardy. For instance, the 19th Amendment states that in appointing cabinet ministers, the President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers. Thus, when it comes to determining the subjects and the number of ministries, the President has the final say. But when it comes to appointing individuals MPs to fill those cabinet positions, the President has an obligation to act on the advice of the Prime Minister. If the provisions of the 19th Amendment do not apply to President Sirisena because he was elected President before the 19th Amendment was promulgated, what happens to these power sharing provisions?

If the SC upholds the Attorney General’s argument, in the remaining period of Sirisena’s term he will be exempt from all limitations imposed on the President’s power in appointing the cabinet. After all, it can be argued that since Sirisena was elected President without such limitations, to impose such limitations on him by Parliament later would be against the people’s sovereignty!

Yahapalana NGO raises a valid point

In their submissions to the SC, the advocacy NGO Centre for Policy Alternatives had pointed out that the 19th Amendment to the Constitution clearly states which parts of the Amendment do not apply to President Sirisena as the incumbent President and the reduction of the term of office is not such a provision. This in fact is true. Take for instance Sections 50 and 51 of the 19th Amendment which specifically exempts the person holding the position of President at the time when the 19th Amendment comes into operation from the changes introduced in Section 9 of the Amendment which refers to the appointment of Ministers. As a result of this exemption, between the time the 19th Amendment comes into operation and the parliamentary election of August 2015, the President may, with the concurrence of the Prime Minister, assign to himself any subject or function and may, with like concurrence, determine the Ministries to be in his (the President’s) charge.

Section 51 of the 19th Amendment likewise grants Sirisena an exemption from the operation of Section 9 of the 19A on the appointment of the cabinet by allowing Sirisena to hold the Defence, Mahaweli Development and Environment ministries for as long as he remains President. So as the CPA says, the 19th Amendment does have specific provisions exempting the incumbent President from the operation of certain Sections of the Amendment but the reduction in the term of the President is not among those exemptions.

By the time this newspaper is published, the determination of the SC would have been communicated to the President. Since this is a case of the President consulting the SC on a constitutional matter, he is under no obligation to make known to the public what the SC determination was. In fact speculation is rife that he may seek to keep the determination a secret so that his henchmen can claim that the President will be in office until January 2021. In fact ever before the SC had delivered its determination, Sirisena loyalists were claiming that the President will be in office until 2021 as a way of boosting their prospects at the local government election. It may be necessary to file a separate FR application in the SC for the public to get to know when the next presidential election will be held. Since President Sirisena has already applied to the SC for a determination on when the next Presidential election has to be held, the public now has a right to know what the determination of the SC was.

Perhaps the SC cannot make their determination public on their own. However if the Sirisena faction tries to misrepresent what the determination said, so as to gain political advantage, the SC should inform the public of what they really said. One of the lawyers who appeared before the Supreme Court, Faiz Mustapha, had argued that the public pronouncements made by President Sirisena before and after the 19th Amendment explaining how he reduced his term by one year are irrelevant. How can those pronouncements be irrelevant? They were made by the President of the country who was elected to power on the people’s franchise and he was making those pronouncements on a matter of public importance. If the President said publicly that he had wanted the term of the President reduced to four years but had reluctantly agreed to make it five because his MPs had pointed out that it would not be feasible to have elections once every four years, the SC should have taken that fact into consideration in their deliberations.

 How Sirisena can get his extra one year

The 19th Amendment is very clear on two things. Firstly, it reduced the term of the President from six to five years. Secondly, the President and Prime Minister holding office at the time it was promulgated will continue to hold office only under the terms of the Constitution as amended by the 19A. If the SC determines that Sirisena can hold power for six years, the SC will have to explain what the transitional provision in Section 49(1)(b) actually means. The AG most certainly had not offered any explanation of what that transitional provision meant. Be that as it may, there is a perfectly legal way of extending President Sirisena’s term by one year. That is to make use of the loophole in Article 83 of the Constitution which was not amended by the 19th Amendment. Everyone knows that President J.R.Jayewardene put in place safeguards to prevent the term of the President and Parliament from being extended beyond six years by including in his Constitution a provision that such an extension cannot be done without a two thirds majority in Parliament plus a referendum.

That provision was not changed in any way by the 19th Amendment. So even though the terms of the President and Parliament were reduced to five years by the 19th Amendment, a referendum would be needed to extend the term of the President only beyond six years. Theoretically it should be possible to extend the term of the President from five years to six years with just a two thirds majority in parliament! What Article 83(b) in the present Constitution even after it was amended by the 19th Amendment says now is the following: “a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), and is approved by the People at a Referendum…”

So here’s a loophole that can be made use of! A Bill can be brought in Parliament extending the term of the President from five to six years again and the UNP can be persuaded to vote for it on the promise that the bond commission report will be shoved under the carpet. With a little bit of horse trading, President Sirisena will be able to get what he wants. There is no shame in any of this. If a senior President’s Counsel like Faiz Mustapha can present himself in no less than the Supreme Court and argue before the Chief Justice and judges of the Supreme Court that the numerous public pronouncements made by the President – the Head of State, Head of Government and the Commander in Chief of the Armed Forces elected by the sovereign people of Sri Lanka should not be given any value by the court, then there is no depth that is too low to be plumbed. So there will be no shame in getting an Act passed in Parliament to reverse the reduction in the President’s term. As for the Joint Opposition, they too will not really lose anything if President Sirisena gets his term extended by one year. The extension will create such a wave of negative opinion that the Joint Opposition will be able to win the elections that will inevitably follow that one year extension, without having to campaign or even spend any money.