by: A.A.M.NIZAM – MATARA

Maithripala Sirisena in the run up to the 2015 Presidential Election and when he became the President of this country made several personal pledges (forget about the all violated political pledges) which included that he will abolish the executive presidency, he will not seek a second term, he will not stay at the President’s House and rule the country from his house in Polonnaruwa, he will not use helicopters for his travel, he will not crown any of hus family members and there will not be any room for nepotism and cronyism under his rule etc.

During the last three years he breached all these promises and after a statement made by the former President Mr. Mahinds Rajapaksa on 13^th December saying that Sirisena can be the President of this country only for another 18 months he suddenly got awaken, disturbed and sought opinion of the Supreme Court whether his term of office is valid for five years or six years?

Unlike the ignoramus former Gramasevaka Sirisena, the genius Attorney at Law Mr. Mahinda Rajapaaksa in his December statement stated that nominations have now been accepted for the local government elections which were delayed for nearly three years by the government owing to the fears they had to go before the people.  Althugh the local government election is not an election that would not changee the power in the country this election has a special significant importance as it is the first time the people of this country get the opportunity of exercising their franchise to register their opposition to thee present government.  The last election held under the so-called yahapalana administrators was the 2015 general election.  The President made the United Nationl Party to win that election by destabilizing the United People’s Freedom Alliance’s election campaign by taking several measures adverse to the UPFA which included issuing a few days before the election public statements detrimental to the UPFA and removing the General Secretries of both the Sri Lanka Freedom Party and the United People’s Freedom Alliance.

The message sent to the whole country by these actions was that since that the spoon is in the hand of the President it is the United National Party that will become victorious even if they lose from the election.  It was how the current President of the Sri Lanka Freedom Party made the United National Party to win from that election.  That is why the joint opposition is facing this local governement election from a different organization and from a different symbol.   The objective of thee joint opposition is to provide a political alternative for the anti government forces. Although the SLFP group in the government makes various public criticisms of the UNP they remain together in the Cabinet and provide all assistance for sustaining this coalition government.

The SLFP members vote for the UNP budget every year.  The whole country witnessed a few days ago that they voted for the 2018 UNP Budget.  Both groups act in cooperation even in matters related to the sale of national resources.  When the Minister of Ports and Shipping appointed by the UNP opposed the sale of Hambaantotaa Port he was replaced by the Minster from the SLFP and the unfavourable deal initiated by the UNP was concluded.  The whole country witnessed recenty the Prime Minister dancing with the specimen of the U.S.Dolar 292 Million cheque received from the Chinese company and SLFP Ministers clapping their hands jubilantly.

The SLFP Group seems to be working in collaboration with the UNP to bring a new constitution to divide this country to nine units equal to independent states.  The SLFP group in the government is only opposed to abolition of the executive presidency in the proposed constitution. The SLFP group in the government has also not expressed any objection to the ETCA agreement to be signed by the UNP with India.  The whole country also witnessed that the SLFP group in the government collaborating with the UNP in the postponement of the local government aand provincial council elections.  Has the SLFP President shown any objection when the war heroes who gave leadership to the war against terrorism were taken into custody colossally instead of cooperating in those acts?

Although the JVP is acting like an opposition party it is also a main partner in the yahaapalana combine.  This government has received the cooperation of the JVP for all its anti democratic activities from the very beginning. The JVP leader was a member of the committee comprising yahapalna Ministers, politicians, and activitists of the NGOs which was steerig the FCID.  They criticize the Joint Opposition drastically while criticizing the government only in a very mild anner.  The JVP is also supportive of the new constitution to be brought in by the coalition government. It was the JVP that provided the 2/3 majority in the Parliament to facilitate the government not to hold the provincial council elections which was already due.

Prior to that, the JVP also supported the government completely against the constitution of the country and against the standing orders of the Parliament to change legislations related to the election of local government institutions.  The JVP which under the leadership of Mr. Somawansa Amarasinghe supported me in the 2005 presidential election to prevent Ranil Wickremasinghe coming to power has now become a cat’s paw of the UNP under a different leadership.  Therefore all the voters should understand that the joint opposition is the only anti-government force in the forthcoming local government elections.

The local government election that is to be hl on 10^th February will be the beginning of  a chain of elections until the next presidential election.  The 19^th amendment to the constitution changing the Article 30(2) of the constitution reduced the term of office of the President to 5 years.  Article 49(1)(B) of the 19^th amendment has made special provision for this change with retrospective effect applicable to the incumbent President as well. Therefore the term of office of the incumbent President ends on 9^th January 2020.  As per Article 31(3) of our constitution a presidential election should be held in a period which should be not more than two months and not less than one month of the end of the term of office of the incumbent President.  As per these constitutional provisions the next presidential election should be held in between 9^th November 2019 and 9^th December 2019.

When taken into consideration with the provisions of the 1981 Presidential Election Act related to exercise of the franchise and calling for nominations the process of holding the next presidential election should start by October 2019.  Accordingly there is only about 18 months between the start of the process of holding the next presidential election by October 2019 and holding the local government elections in February 2018.

Before holdig the presidential election the government will also have to hold the Provincial Ciuncil elections that have been postponed. The provincial councils of Sabaragamuwa, North Cetral and the East have already become dissolved.  The North and Northwestern (Wayambaa) provincial councils will get automatically dissolved in next year.  Since this government came to power with the majority votes received from the North and East the present rulers will not be able to face a presidential election without the provincial councils of those two areas.

Accordingly we can expect that after the local government elections in February 2018, provincial council elections will come within a few months, and a few months after that the presidential election will be held. 

No elaboration is needed to tell about the misery this coalition government has caused to the country after they acquired power. All the voters should think well why they ask for the power in the villages after it has been proved well before our eyes that this UNP-SLFP coalition government cannot ruke the country. I appeal to all voters to exercise their franchise only on the basis of whether you favour or oppose this UNP-SLFP coalition government”.

The five memer bench of the Supreme Court headed by the Chief Justice Priyasath Dep has made a unanimous ruling that the President’s term was restricted only to five years. The bench comprised Chief Justice Priyasath Dep, Eva Wanasundare, Buvaneka Aluvihare, Sisira de Abrew and K. Chitrasiri.

In this saga it seems that Sirisena has swallowed the dead rope of the Attorney General his own appointee Jayanth Jayasuriya and sought the Supreme Court opinion in spite of the explanation given by Mr. Mahinda Rajapaksa which can be clearly understood even by a G.C.E.(O/L) student.  The Attorney General had argued 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 has assertee#d that there cannot be retrospective effect unless it has been specifically made retrospective.

As per Sunday Island political analysts the veteran journalist C.A.Chandraprema, who is also an Attorney at Law, the crux of the Attorney General’s argument was 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: “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, Chandraprema says 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.

Raising the question does anything at all in 19A apply to Sirisena? Chandraprema explains 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.

He argues 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.

Elaborating further he says that 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, he asks what happens to these power sharing provisions?

Sirisena in his lunacy must have written to the Supreme Court with the certinity of the verdict in his favour blinded by the assertionS made by his acolyte AG and with a hidden motive of making use of the verdict as a ploy to castigate the JO and take advantage for his fading SLFP in the elections.  The verdict has also assured the colossal defeat for his fading SLFP and what he shoulD do now in the interest of the country is to dismiss the AG immediately as he could make a mockery of the interpretation of the Law in the future.