President Maithri’s future political decisions

will depend on SC ruling on his term

BY GAGANI WEERAKOON-2018-01-14

President Maithripala Sirisena last week asked the Supreme Court whether it is
Constitutional for him to serve a full six-year term, from January 2015, when he
was elected, to January 2021.The President, in terms of Article 129 (1) of the
Constitution, has asked; "In terms of the 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 9 January 2015, have
any impediment to continue in the office of the President, for a period of 6 years
from 9 January 2015, the date on which results of my election to the office of the
President was declared."

The President had referred this question to the Supreme Court, apparently due to
him being elected as President of the country on 9 January 2015, prior to the
passing of the 19th Amendment, which reduced the term of the Executive
President to five years and on the grounds that the law cannot be retrospective.

Article 129 (1) of the Constitution states: "If at any time it appears to the
President of the Republic that a question of law or fact has arisen or is likely to
arise, which is of such nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it, he may refer that question to
that Court for consideration and the Court may, after such hearing, as it thinks fit,
within the period specified in such reference or within such time as may be
extended by the President, report to the President its opinion thereon."

Attorney General Jayantha Jayasuriya on Thursday contended that incumbent

President Maithripala Sirisena can continue his term of office as President for 6
years. The Attorney General appearing with Additional Solicitor General Murdu
Fernando and Deputy Solicitor General Nerin Pulle submitted that the incumbent
President Maithripala Sirisena has sought the opinion of the Supreme Court
whether there is any impediment to him to continue his terms of office for 6
years as President as amended in the amended Article 31 of the 19th
Amendment.

He stated that the Presidential election was held on 8 January 2015 and
incumbent President Maithripala Sirisena was elected and assumed duty on 9
January 2015.

The incumbent President was elected by the people for the office to the term of 6
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, the AG argued.

He said it is 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 6 years by the people.

Therefore, the issue is whether the 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.

He said that according to Article 49(1)(a) and (b) stating that for the avoidance of
doubt it is hereby declared that (a) the 7th Parliament in existence on the day
preceding the date on which this Act comes into operation, shall, unless dissolved
earlier, continue to function until April 21, 2016 and shall thereafter stand
dissolved.

He said that Article 49(1) (b) states 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.

He maintained that the mandate of the people to be a term of office for 6 years
on 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.

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.

The Bench of Chief Justice Priyasath Dep, Justices Eva Wanasundera, B.P.
Aluvihara, Sisira J De Abrew and K.T.Chitrasiri were nominated for the opinion of
the Supreme Court on this matter in respect of the ambiguity arising after the
enactment of the 19th Amendment to the Constitution.
Meanwhile, The Centre for Policy Alternatives (CPA) made representations on
behalf of itself and its Executive Director, Dr. Paikiasothy Saravanamuttu,
intervening in the reference made by President Sirisena to the Supreme Court
regarding his term of office as President.

They said the 19th Amendment to the Constitution is very clear. The Amendment
makes express provision that the President's term is limited to five years:

Article 30(2) of the Constitution: The President of the Republic shall be elected by
the People, and shall hold office for a term of five years.

Further, the Amendment's transitional provisions explicitly state that this five-
year term limit applies equally to the sitting President:

Section 49(1)(b) of the 19th Amendment to the Constitution: For the avoidance of
doubt it is hereby declared that ... 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.

Furthermore, the 19th Amendment to the Constitution clearly states which parts
of the amendment do not apply to President Sirisena as the incumbent President
and the reduction of the term of office is not such a provision (Section 51 of the
19th Amendment). Accordingly, President Sirisena's term must be understood as
being for five years from 9 January 2015 (i.e. until 9 January 2020) and not for six
years (i.e. until 9 January 2021). CPA notes that in the lead up to the enactment of
the 19th Amendment in 2015, President Sirisena himself noted that the reduced
Presidential term of five years will apply to him. CPA hopes the President is
mindful of his earlier assertions. CPA also urges constitutional and political actors
to act in a manner that upholds the spirit of the 19th Amendment.

CPA appreciates that the Chief Justice and the other judges of the Supreme Court
facilitated and permitted interventions from members of the public to make
representations in this instance. CPA notes that there have been previous
occasions wherein only the Attorney General was heard during similar
proceedings. CPA has consistently stated that the process in Article 129 (1) of the
Constitution relating to a reference could lead to a lack of transparency. As such
CPA respectfully calls on the Supreme Court to ensure that the ensuing Advisory
Opinion is made public.
In a similar incident, then President Mahinda Rajapaksa in November 2014 sought
the opinion of the Supreme Court;

a. Whether in terms of Article 31 (3A)(a)(i) of the Constitution, as amended by the

18th Amendment, I, as the incumbent President, serving my second term of office
as President, have any impediment, after the expiration of four years from the
date of commencement of my second term of office as President on 19th
November 2010, to declare by Proclamation my intention of appealing to the
People for a mandate to hold office as President by election, for a further term?
And

b. Whether in terms of the provisions of the Constitution, as amended by the 18th

Amendment, I, as the incumbent President, serving my second term of office as
President, and was functioning as such on the date the 18th Amendment was
enacted, have any impediment to be elected for a further term of office?

These questions were sent by the Registrar of the Supreme Court to the President
of the Bar Association of Sri Lanka (BASL) requesting its membership to submit
written submissions by 3 p.m., 7 November.

Even though, the submissions sought Supreme Court's opinion to be submitted to

President Sirisena by today (14) it is likely that it will only be delivered to him by
tomorrow morning.

Meanwhile, sources also claimed that despite several parties including the CPA
having respectfully called on the Supreme Court to ensure that the ensuing
Advisory Opinion is made public, President Sirisena will not publicized it any
sooner.
The United National Party (UNP), who already disheartened by the fact that Bond
Commission report not being made available to the Prime Minister Ranil
Wickremesinghe, said it would have been much better for President Maithripala
Sirisena to have consulted the Government allies before seeking a determination
from the Supreme Court on the expiry of his term of office.

Minister and Leader of the House Lakshman Kiriella said this had caused some
uneasiness among the Government allies.

He said even if the Court ruled it to be at the end of six years, the President had
the option of calling for an early Presidential Election at the end of five years.

Meanwhile, President Sirisena said he sought a clarification due to a confusion

arose as a result of various parties stating different dates. SLFP General Secretary
Duminda Dissanayake in the presence of President Sirisena on 10 January - two
days after he referred the matter to the SC - told a packed SLFP campaign rally
that President Sirisena will be in office till 2021.

Asked as to what triggered President Sirisena to seek fresh opinion on his term,
informed sources said "it is irrelevant whether it would be 2020 or 2021. But we
need to know when the exact date is, in order to plan future political activities
and prioritize President's decisions."

Bond commission report

Secretary to the President came under criticism in Parliament on Wednesday (10)

when it was convened for a special session-supposedly to table the report of the
Presidential Commission to investigate Treasury bonds scam.

With no report being tabled Opposition ranks demanded as to how the

Parliament, which is responsible for public funds.

Chief Opposition Whip Anura Kumara Dissanayake: "We have been demanding
that the Bond Commission report be tabled. At the last Party Leaders' meeting we
came to an agreement that the Speaker would get the report tabled and
thereafter we would hold a Party Leaders' meeting to decide on the debate. A
summary of the report had been publicized by the President in his address to the
nation. In his summary, the President said that there was a loss of Rs 11,000
million to the country, out of which a loss of Rs 8,500 million was to public funds.
In addition, public funds were used for the conduct of the affairs of the
Commission. These details should not be hidden or only limited to the knowledge
of a few. The Parliament should be informed of these. We have asked for these
reports under the provisions of the Right to Information Act."

JO Parliamentary Group Leader Dinesh Gunawardena: We had requested the

President to give us a copy of the report. The Secretary to the President has said
that he would give a copy to the Janatha Vimukthi Peramuna. The JO has 53 MPs.
We asked at the Party Leaders' meeting for the tabling of these reports in
Parliament.

This is a serious question. The Government says it does not have the report. It was
promised at the Party Leaders' meeting on 9 January that the first item on the
cards for Parliament today (10) would be the tabling of the report. Now, the
officials cannot override the promise given by the Speaker and ask for more time.

Former Speakers Anura Bandaranaike and Chamal Rajapaksa have established

that Parliament is above other institutions, including the Judiciary. Now it is up to
you as the Speaker to use your powers. You have the powers to summon any
public official and ask for any public document. The entire country is waiting to
see the report. You can summon the Secretary to the President and ask him to
come with the report."

Opposition Leader R. Sampanthan: "The reports should be tabled at its earliest

possible time. This is a matter pertaining to public funds and the Parliament has
responsibility over public finances. This should be debated. We should investigate
frauds and find the truth. There was a time when we did not know what
happened to similar Commission reports. I thank the President and the Prime
Minister for this report. The public should not be given the impression that we are
shying away from the Commission report or from the debate."
Speaker: "The Presidential Secretariat has promised to give us the reports next
week. I do not want to see a conflict between the President and the Parliament."

Dissanayake: "We too demanded that the Parliament be summoned. We asked

for the special sittings to debate the Bond Commission report and not to listen to
the Prime Minister's speech. The President says that he would give the reports in
a week.

We cannot accept that. You are delaying the reports targeting the elections.
Summon the Secretary to the President to the Parliament and ask him as to why
he cannot give us a copy. When the Bond Commission report was given to the
President, there were already three copies. Ask for one of them for the
Parliament."

Speaker: "One has been sent to the Commission to Investigate Allegations of

Bribery or Corruption (CIABOC)."

Dissanayake: "We should have been given it before it was given to the CIABOC.
Since when does the CIABOC come above the Parliament?"

Tamil National Alliance MP M.A. Sumanthiran: The report should have been sent
to the Parliament before it had been directed to other institutions. We call on the
Speaker to instruct the Secretary to the President to come to the Parliament at
1.30 p.m. on this day (yesterday – 10 January) with a copy of the report."

Dinesh Gunawardena: "The Speaker has powers to summon any public official.
Call the relevant officials and table the report."

Finally it was agreed to submit the report to Parliament –about 26 copies- on 17

January claiming the reports needed to be translated into Sinhala and Tamil and it
cannot be rushed, as any discrepancy would create further confusion.
Posted by Thavam