Compiled by Sulochana Ramiah Mohan
In recent weeks the debate on whether former Presidents Chandrika Kumaratunga (CBK) and Mahinda Rajapaksa (MR) can contest the Presidency once more has been buzzing in the political circle. This is because the head of the Sri Lanka Podujana Peramuna Prof. G L Peries, a Law Professor said that the 19th Amendment (19A) does not necessarily ban these persons who have been elected to the post twice before.
They are barred From Contesting – Gehan Gunatilleke
Human Rights Lawyer and head of legal research at Verité Research, Gehan Gunatilleke argues that ex-Presidents of Sri Lanka CANNOT.
What is your general opinion, can they contest or not?
A: The presidential term limit contained in article 31(2) of the Constitution applies to any person who has been elected to the office of president twice under the 1978 Constitution. Therefore, Chandrika Kumaratunga Bandaranaike and Mahinda Rajapaksa are barred from contesting another presidential election.
If they can, what is the justification? Is it because the 19A is seen as a ‘New’ Constitution, or is it because there is no explicit ban spelt out in the Amendment? If they cannot, does it mean the provisions in the 19A are sufficient? Did the 19A change the powers of the office of President or did it create a new office?
A: The 19A did not create a new ‘office of President’. It did not abolish the office of president that existed at that time and replace it with a new office. The office of President established by the 1978 Constitution has remained the same notwithstanding any subsequent amendments to the Constitution.
In this context, the two-term limit re-introduced by the 19A applies to all those who have held the office of president under the 1978 Constitution. Only certain powers vested in the office of the president, and other features of the office, such as term limits and eligibility conditions, were changed through the 19A.
The text of the Constitution does not support the view that the 19A replaced the existing office of the president with a new office, as article 4(b) refers to the ‘president’ as exercising the executive power of the people. This article was left untouched by the Amendment.
The text of the 19A Act does not support such a view either. At no point in the Amendment is there a reference to the replacement of the office of the president. It is inadvisable to read a specific legislative intent into the text of the Amendment when no such intent is apparent in the actual text.
There is no supporting evidence of such an intent in the parliamentary debates (Hansard) on the 19A either.
There is no known rule in constitution-making or constitutional interpretation that suggests that replacing a particular article in the process of amending that article necessarily signifies a legislative intent to replace the office or institution referred to in the article.
So, for instance, repealing and replacing article 30 of the Constitution, with a new article 30 through the 19A, does not reflect any particular legislative intent other than the intent to make the substantive changes made through the Amendment.
In this case, the only substantive change made through the Amendment is the reduction of the duration of the presidential term from six years to five years. The text of article 30, otherwise, remains the same. Thus the only legislative intent that can be interpreted from the amendment of article 30 is the intent to reduce the duration of the presidential term.
In your opinion, what was the spirit of the 19A. Is it to restore the term limits of a President? Strengthen democracy? Ensure the independence of key institutions such as the Judiciary, the Public Service, the Police and the Elections Commission?
A: The main objective of the Amendment was to repeal the 18th Amendment and restore and strengthen democratic checks on power.
This objective was achieved to some extent by reducing the powers of the Executive President with respect to making appointments to high offices and independent commissions.
Central to this objective was also the restoration of the two-term limit, so that executive power is not concentrated in one individual for a prolonged period of time. The argument that the Amendment was not intended to apply to persons who have previously been elected twice runs contrary to this basic objective.
Do you believe there are grounds to question any ambiguity about the application of term limits on CBK and MR? If so why?
A: There are no grounds to believe that there is any ambiguity in this regard. The text of the Amendment and the rest of the Constitution is clear that a person who has been twice elected to the office of President cannot contest again.
One of the debates is that the 19A applies from the date it was adopted some argue. How should this be legally interpreted?
A: The 19A only applies prospectively. But in terms of the two-term limit, prospective application does not mean such an eligibility criterion does not apply to those who have already been elected to the office of president twice.
It is the same logic that applies to other new eligibility criteria that was introduced through the Amendment. For example, it defies reason to argue that the disqualification relating to dual citizenship does not apply to persons who were already dual citizens at the time the Amendment was enacted.
The same logic applies with respect to the two-term limit. It is still a prospective application of the eligibility criteria, as it applies to future elections.
Some ask if the 19A abolished the office of President that existed till then, would the Supreme Court not have said that 19A requires a Referendum. Do you agree?
A: The Supreme Court’s determination on the 19A makes it clear that the President is the ultimate repository of the executive power of the people, and that any amendment that changes that structure would be inconsistent with article 3 read with article 4 of the Constitution.
If 19A had in fact replaced the office of the president with a new office, the Supreme Court would have surely noted so. It would have declared the Amendment inconsistent with articles 3 and 4 of the Constitution and determined that it required approval by the people at a referendum.
If this argument holds, then incumbent President who got elected under the 18th A, could stay in the office for 6 years as well, isn’t it, which the Supreme Court decided to be otherwise?
A: An explicit legislative provision governs the office of the incumbent president. The change of the duration of the office of the incumbent president is clearly provided for through section 49(1)(b) of the 19A Act, as it specifies that the person holding the office of president at the time the Amendment was enacted will ‘continue’ to hold such office ‘subject to the provisions of the Constitution as amended by this Act.’
So the five-year duration applies to the incumbent president. It should be noted that the section also reconfirms the continuity of the office of president after the enactment of the Nineteenth Amendment, as there is clear reference to the fact that the incumbent President ‘shall continue to hold’ the same office as the office of president referred to in the 19A.
No Legal Impediment – Dr. Nihal Jayawickrama
Ex-Presidents of Sri Lanka can contest under the 19A provisions, argues academic and former Secretary to the Ministry of Justice Dr. Nihal Jayawickrama.
What is your general opinion, can they contest or not?
A: The norm in democratic states is two terms, and it is not desirable to exceed it. Unfortunately, the 19th Amendment appears to have failed to restore that limit (which was abolished by the 18th Amendment) in so far as it applies to former Presidents.
Therefore, unless another constitutional amendment makes them subject to that disqualification retrospectively, or the 20th Amendment, proposed by the JVP is passed, there does not appear to be any legal impediment to their seeking election.
If they can, what is the justification? Is it because the 19th Amendment is seen as a ‘New’ Constitution, or is it because there is no explicit ban spelled out in the Amendment? If they cannot, does it mean the provisions in the 19A are sufficient?
A: The 19A repealed Article 30 which had established the office of President in 1978. Thereupon that office ceased to exist. Thereafter a new Article 30 was substituted in its place. It was almost identical, except that the term of office was changed from six years to five.
If all that Parliament intended was to shorten the term of office, a simple amendment to substitute five years for six would have achieved that objective.
Instead, Parliament chose to repeal the entire Article, thereby abolishing the existing office, and replaced it with a new Article that established the new office of President. It was followed immediately by a new Article 32(2) which disqualified a person who had been twice elected to the office of President from being elected to that office again.
That disqualification clearly applied to the new office of President. The 19A could have retrospectively extended the disqualification to persons who had twice been elected to the previous office of President, but it did not do so.
Did the 19A change the powers of the office of President or did it create a new office?
A: The powers, functions and duties of the new office of President established by the 19A are fundamentally different from those of the previous office, and that probably explains why the previous one was abolished and the new one created.
Article 33, which defined the duties, powers and functions of the President, was repealed and replaced.
The entire Chapter VIII, which established the Executive, was also repealed and replaced with a new chapter in which nearly all the powers of the President were transferred to the Prime Minister.
In later chapters, the President’s executive power of making appointments was also abolished, and he is now required to act on the advice of the Constitutional Council.
The only appointments that he can now make on his own are those of ambassadors, ministry secretaries and provincial governors.
He can dissolve Parliament only at the request of two-thirds of its members, except during the final six months of its five-year term. He does not enjoy immunity from judicial proceedings.
In your opinion, what was the spirit of the 19A. Is it to restore term limits of a president? Strengthen democracy? Ensure the independence of key institutions such as the Judiciary, the Public Service, the Police and the Elections Commission?
A: I never seek this “spirit”, wherever or in whatever form it may be lingering. The so-called “spirit” cannot override the text of the Constitution. It may guide practice.
For example, the 1982 extension of the life of Parliament for a further term of six years through a constitutional amendment and a referendum instead of holding a general election, was not unconstitutional, but may have been against the democratic “spirit”.
If “spirit” means the aim or aspiration, then the aim of the 19th Amendment was to dismantle the authoritarian executive presidency.
On the other hand, the “intention”of Parliament is expressed in the language it has used. It is by interpreting that language that the Court ascertains the intention.
If it is misinterpreted, Parliament may clarify its intention through another law. Unfortunately, the Parliament that enacted the 19th Amendment no longer exists.
Do you believe there are grounds to question any ambiguity about the application of term limits on CBK and MR? If so why?
A: I do not think there is any ambiguity in this matter. The 19A clearly intended to disqualify a person who had been twice elected by the People to the office of President from seeking election again by the People to that office. But it failed to anticipate two possible situations.
The first is that such a person may yet be elected to the office of President by Parliament, if or when a vacancy occurs in that office.
The second is that there were persons who had been twice elected to the previous office of Executive President to whom the disqualification was, advisedly or inadvertently, not applied.
Laws are prospective, especially those which impose a penalty or disqualification, unless a contrary intention is expressed.
One of the debates is that the 19A applies from the date it was adopted some argue. How should this be legally interpreted?
A: The provisions of the 19A were brought into operation on different dates, and not necessarily on the date on which the Speaker certified it. I don’t see any relevance in that.
Some ask if the 19A abolished the office of President that existed till then, would the Supreme Court not have said that 19A requires a Referendum. Do you agree?
A: Article 3 is not included in Article 83 as requiring approval at a referendum for its repeal or substitution. It is not one of the provisions in the Constitution that attracts the referendum.
If this argument holds, then the incumbent President who got elected under the 18th Amendment, could stay in the office for 6 years as well, isn’t it, which the Supreme Court decided to be otherwise?
A: He cannot. A transitional provision says that he shall continue to hold the office of President but subject to the changes effected by the19A. In other words, for five years and without nearly 95 per cent of the executive powers he earlier possessed. This confirms that the office he now holds is a new office, and not the one to which he was elected in January 2015.
Taken from Ceylon Today