Sri Lankan President Maithripala Sirsena’s bid to get another year in office through a Supreme Court interpretation of the relevant clauses of the 19 th. Amendment (19A) of the Constitution, stems both from a lack of clarity in the clauses and Sirisena’s own pressing need to stay in power a little longer.
In a letter to Chief Justice Priyasath Dep dated January 8, Sirisena had sought the court’s opinion on whether there is a constitutional bar on his continuing in office for six hears instead of five.
What Sirisena asked in his letter was: “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 09th January 2015, have any impediment to continue in the office of President for a period of 6 years from 09th January 2015, the date on which the result of my election to the office of President was declared”.
President Sirisena had asked for a response to be submitted to him on or before January 14, 2018.
The Registrar of the Supreme Court M M Jayasekera has notified the President and Secretary of the Bar Association of Sri Lanka to their membership that the matter will be listed on Thursday (January 11) at 11am in the Supreme Court.
The 19th Amendment to the Constitution, passed on May 15, 2015, clearly states that: “The President of the Republic shall be elected by the People and shall hold office for a term of five years.”
However, Sirisena was elected for a six year term by a nation-wide popular vote on January 9, 2015 prior to the enactment of the 19A. Some feel that there is a strong case for his continuing to be in office for six years till January 9, 2021 to fulfill the popular mandate, irrespective of the provisions of the 19 A.
There is also an opinion that a new law should not adversely affect people enjoying privileges under an earlier law unless there is an express provision for retrospective application. Therefore, the 19A should not be applied to Sirisena.
If the Supreme Court does give him six years, instead of five as mentioned in the 19A, he can fulfill various political agendas in regard to his party, the Sri Lanka Freedom Party (SLFP); his relations with his coalition partner and colleague, Prime Minister Ranil Wickremesinghe; and his immediate and most potent rival, former President and leader of the opposition Sri Lanka Podujana Peramuna (SLPP), Mahinda Rajapaksa.
If he does stay in office in August 2020, Sirisena will be able to decisively influence the selection of SLFP candidates for the August 2020 parliamentary elections. The SLFP constitution says that if the President of Sri Lanka is an SLFP man, he will automatically be named Chairman of the party also, and given power to have the final say in the distribution of party tickets.
And as President, Sirisena can also decide who will be the Prime Minister. It is the Executive President’s prerogative to appoint anybody as Prime Minister who, in his view, can command majority support in parliament. Sirisena used this power in January 2015 when he appointed Ranil Wickremesinghe as Prime Minister even though Wickremesinghe’s party, the UNP, had only 41members in the House of 225.
Therefore, Sirisena can thwart arch rival Rajapaksa’s bid to become Prime Minister even if the latter has the numbers in parliament in August 2020.
In fact, Sirisena had pre-empted Rajapaksa’s becoming Prime Minister in August 2015 when he publicly declared that he would not appoint him Prime Minister even if his group was the single largest in parliament. The declaration, made prior to polling, had demoralized Rajapaksa’s supporters and led to many leaders switching sides to Rajapaksa’s deteriment.
An extension of his term by a year will enable Sirisena to pursue the corruption charges against Rajapaksa and his henchmen, demoralize the SLPP, and weaken public support for it. At the moment, Rajapaksa and his SLPP are the greatest threat to Sirisena and the latter is desperate to mitigate it ahead of the local bodies elections in February and the national elections later.
And given the differences between Sirisena and Prime Minister Wickremesinghe both in regard to policy and style of functioning, continuation in office for an extra year will help Sirisena further build and consolidate his power vis-à-vis Wickremesinghe and his party, the UNP and checkmate them if needed.
Not A New Issue
Sri Lankans are no strangers to controversies over the term of the President.
President Chandrika Kumaratunga was elected in December 1999 for a second six year term (under the then constitutional provision). She took the oaths immediately after the victory. As a consequence, her second term should have ended in December 2005. But Kumaratunga wanted to stay on till November 2006 because she took a second oath in November 2000. This was to make use of the norm that a President’s term begins on the day he or she takes the oath of office.
But her rival Mahinda Rajapaksa approached the Supreme Court and secured a ruling saying that her term began in December 1999 when she took the oath for the first time and that her term would end in December 2005. The court ruled that the second oath taken in November 2000 would not count.
However, in February 2010, a seven-Judge Supreme Court bench allowed President Rajapaksa to assume his second term of office, ten months after the presidential election held in November 2010. This gave Rajapaksa time to serve till November 2016.
But he chose to call for a mid-term poll which took place in January 2015. He was defeated in the 2015 election and thus lost the chance to continue till the end of 2016.
Need For Clarity
Like the proverbial bad coin, constitutional headaches like the term of the Sri Lankan President, keep coming back. Interested parties keep running to the Supreme Court for clarity on ambiguous clauses or provisions. These ambiguities have put Sri Lankan Presidents at the mercy of the Chief Justice. It is time loopholes in the constitution such as the one relating to the term of the President were plugged after informed debates in parliament and outside.