By S.S. Selvanayagam
Attorney General Jayantha Jayasuriya yesterday (11) contended that President Maithripala Sirisena could continue his term of office as President for six years, even as a five-judge bench of the country’s highest court heard interventions on a knotty and politically charged question put before them by the incumbent President himself.
Making submissions in a packed courtroom, the Attorney General, appearing with Additional Solicitor General Murdu Fernando and Deputy Solicitor General Nerin Pulle, submitted that the incumbent President Maithripala Sirisena had sought the opinion of the Supreme Court on whether there was any impediment to him continuing his terms of office for six years as President as amended in Article 31 of the 19th Amendment.
He stated that the presidential election was held on 8 January 2015 and incumbent President Sirisena was elected and assumed duty on 9 January 2015.
The Attorney General argued that the President had been elected on 9 January for a term of office of six years.
He submitted that the incumbent President was elected by the people to the office to a term of six years. It is the sovereignty of the people who exercise their franchise to elect him as President. The power emanated from the franchise of the people. The commencement of his office should be considered from the date on which he is elected.
He said it was the Constitutional structure where the incumbent President was elected. The 19th Amendment to the Constitution is operative after the incumbent President was elected for a term of six years by the people.
He continued that therefore the issue was whether Article 3 and 4 of the 19th Amendment made operative where the term of office has already commenced.
He said there cannot be retrospective effect unless it has been specified or implied in any provision and there is no applicable provision retrospectively in the amendment.
However, other legal scholars contend that Article 49 (1) (b) of the 19th Amendment clearly stipulates the incumbent President and Prime Minister holding office shall hold office after 22 April 2015 – the date of the enactment of the 19th Amendment, subject to the provisions of the Constitution as amended by the 19 Amendment.
This transitional provision, legal scholars argue, makes it clear that the incumbent president is also subject to the term set in the 19th Amendment. The 19th Amendment to the Constitution reduces a president’s term to five years. Article 49 of the 19th Amendment, specifically declares that the transitional provisions contained in the section was for the “avoidance of doubt”.
The Attorney General argued however that the President had received a mandate of the people for a six-year term in office, upon which he assumed duty. He contended that any change would affect and alienate the sovereignty of the people.
Saliya Peiris PC appearing for the intervenient petitioner Ven. Ulapane Sumangala Thera and Faisz Musthapha PC appearing for the Intervenient Petitioner SLFP General Secretary Duminda Dissanayake made similar submissions.
The Centre for Policy Alternatives (CPA), the Campaign for Free and Fair Elections (CaFFE) and Manohara De Silva President’s Counsel appearing for the intervenient petitioner and Sri Lanka Podujana Peramuna Chairman Prof. G.L. Peiris all argued that the 19th Amendment expressly stipulates that the incumbent President could serve for a term of five years.
A panel of five judges of the Supreme Court took up the reference to make a decision on the ambiguity over the question of the tenure of office for the incumbent President Maithripala Sirisena as President.
A bench of Chief Justice Priyasath Dep, justices Eva Wanasundera, B.P. Aluvihara, Sisira J De Abrew and K.T. Chitrasiri had been nominated for the opinion of the Supreme Court in this matter.
President Sirisena has referred the matter to the Supreme Court for its consideration in terms of Article 129(1) of the Constitution, which allows him to obtain the opinion of the Supreme Court on questions of law of public importance.
He has sought the opinion of the Supreme Court that whether, in terms of the provisions of the Constitution, he, 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 9 January 2015, has any impediment to continue in the office of President for a period of six years from 9 January 2015, the date on which the result of his election to the office of President was declared.