By Chitra Weerarathne
President’s Counsel Manohara de Silva said in the Supreme Court yesterday that Parliament had not said that the incumbent President Sirisena could hold office for six years when it passed the 19th amendment to the Constitution in May 2015; it had only said the term of the President should be five years and not six years. Under the operative law President Sirisena could not go beyond five years, he argued
The five-member bench comprised Chief Justice Priyasarth Dep, Justice Eva Wanasundera, Justice Buwaneka Aluwihare, Justice Sisira De Abrew and Justice K. T. Chitrasiri.
President Sirisena has sought a clarification from the Supreme Court whether the 19th Amendment has any effect on the six-year duration of his term.
At the outset, the Attorney General President’s Counsel Jayantha Jayasooriya said the people had exercised their franchise and elected the incumbent President on January 8, 2015.
“The results were confirmed on January 9, 2015. The incumbent President Maithripala Sirisena took oaths for a period of six years on January 9, 2015.
“The 19th Amendment of the Constitution came effective after the incumbent President had been sworn in. The 19th Amendment commenced on May 14, 2015. By that time President Sirisena had already commenced his six year term.
“The 19th Amendment has no provision that says that it is applicable retrospectively. The 19th Amendment, though it limits the term of office of the President to five years, is not retrospectively. The provisions are operatively prospectively only.
“Article 38 of the Constitution specified the vacation of office of the President. Under Article 38/1 e the President could be impeached by the legislature.
By Article 40, the vacancy that occurs should be filled for the balanced period.
But, it will not have an impact on the term of office of the incumbent President.
“The President is elected by the people. The term of office will be that provision in force at that time.
“The term of office is the term in force at the time the people exercised their franchise.
The duration of the term could be changed with a mandate of the people with a two-thirds majority in Parliament.
“The retrospective provision on this issue will have to be approved by the people besides ratification by Parliament. The sovereignty of the people enshrined on Article (3) of the Constitution cannot be alienated,” the AG said.
Counsel K. Thiranagama, objecting to the submissions made by the Attorney General, said that the 19th Amendment had reduced the term of office of the President from six years to five years with the approval of parliament and political parties. It flows obviously that the people approved the reduction of the term.
Counsel Thiranagama supported an intervention application which said that the 19th Amendment applied to the incumbent President as well.
“The 19th Amendment does not state that the six year term is retained by that amendment,” he said.
President’s Counsel Saliya Pieris, in an intervention, said that there is nothing in the 19th Amendment which prohibits President Siriseana, from going on for six years from January 9, 2015.
“The 19th Amendment is operative from May 2015 only and not retrospectively.
“The 19th Amendment only changed the term of office of the President from six years to five years.
“If the legislature intended to reduce the term of office of the incumbent President, it should have stated so in the 19th Amendment,” Counsel Pieris argued.
President’s Counsel Manohara de Silva said that the 19th Amendment says that the President shall hold office for only five years. The President shall hold office, according to the amendment. It simply means that, the term is subject to the amendment, specified in the 19th Amendment.
“Parliament did not say that the incumbent President could go on for six years. With regard to the President, the Parliament said that the President would hold office subject to the 19th Amendment.
“The incumbent President could have invoked the Supreme Court under Article 121, soon after the enactment of the 19th Amendment to clarify his rights. He didn’t do so.
“The President could have challenged his rights as a citizen then. He did not do that. He could have challenged the reduction of his term. He did not do it soon after the 19th Amendment was passed in May 2015.
“The President at a public meeting has said he wanted the term reduced. This current challenge could be somebody else’s afterthought.
“The retrospective question is not relevant here. The prospective effect is that he can hold office for five years from the date of taking the oath as President,” Manohara de Silva maintained.