By Reeza Hameed –

Dr. Reeza Hameed

The Nineteenth Amendment has once again become the subject of controversy, and its current focus concerns the provision in the Nineteenth Amendment that disqualifies the same person from being elected as President for more than two terms.

The two-term limit is not a constitutional innovation. A provision imposing a term limit was in the Constitution as it was originally enacted in 1978 but it was repealed by the Eighteenth Amendment enacted during Mahinda Rajapaksa’s tenure as President. It was re-introduced by section 3 of the Nineteenth Amendment which inserted the following new paragraph as Article 31(2) of the Constitution:

“No person who has been twice electedto the office of President by the People, shall be qualified thereafter to be elected to such office by the People.” (emphasis added).

This prohibition was reinforced by section 21 of the Nineteenth Amendment which added Article 92(c) of the Constitution which disqualified a person who “has been twice elected to the office of President by the People” from being elected to the office of President thereafter.  This is identical to the paragraph that existed as Article 92 (c) of the 1978 Constitution before it was repealed by the Eighteenth Amendment.

It has been argued, nevertheless, by some, including Professor G.L. Peiris and ex-Chief Justice Sarath Silva, that these provisions do not disqualify Mahinda Rajapaksa from seeking a third term. Mahinda Rajapaksa has already served two terms as President but if this argument holds, then he would be eligible not only to run for a third term but also a fourth.

It has been contended that according to the Constitution as amended by the Eighteenth Amendment there was no provision imposing a term limit, and as the Nineteenth Amendment does not expressly state that Article 31(2) is to apply retrospectively, it should not apply to Mahinda Rajapaksa, who, in ex CJ Sarath Silva’s rather infelicitous oxymoronic phrase, is ‘a previously elected incumbent in office’.  (Sunday Observer 19 August 2018, Mahinda ineligible to contest 2019 prez poll – Jayampathy”). Mahinda Rajapaksa is not currently holding office to be called an incumbent.

Dr Nihal Jayawickrama (Colombo Telegraph 19  August 2018, “Disqualifying Twice Elected Presidents – A Failed Endeavour?”), agreeing with the views expressed by G.L. Peiris and Sarath Silva, has argued that a law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention.  Dr Jayawickrama has elaborated on this view contending that the Nineteenth Amendment establishes an entirely new office of President, and that the disqualification arising from the term limit only applies to the person holding the newly created office. He bases his conclusion from the language of section 30 of the Nineteenth Amendment which begins with the words: “Article 30 of the Constitution is hereby repealed and the following Article substituted”.

The correct approach

My approach to this issue is different.  The question one ought to ask is not whether Article 31(2) is retrospective or prospective in its effect, but ask what its purpose or objective is. It is important to bear in mind that what is being interpreted is a constitutional amendment and it should be given a purposive interpretation. The provision regarding the term limit must be given a purposive interpretation and in my view Articles 31(2) and 92 apply equally to Mahinda Rajapaksa.

Prevent abuse and promote peaceful change

Constitutional provisions concerning term limits recognise and reflect the dangers inherent in a system of government capable of perpetuating power in the same person.

I wish to recapitulate what I wrote on this point on a previous occasion. “Power when left in the same hands for far too long tends to be abused. It is this fear that provides the rationale for limiting the presidential term. The corollary of this principle is that a change of rulers is desirable for the survival of democratic institutions. Periodic elections are the essence of constitutional democracies and elections are meaningless if they do not facilitate change. Otherwise, the country would be saddled with an elected dictatorship.”

The six-year term (reduced to five by the Nineteenth Amendment) and the two-term limit were important elements of the constitutional arrangement pertaining to the terms of President’s office when it was established by the 1978 Constitution. The Eighteenth Amendment enacted during Mahinda Rajapaksa’s tenure repealed the term limit, thereby entrenching the worst features of the presidential system of government. The re-introduction of the term limit by the Nineteenth Amendment was intended to undo the ill effects of the Eighteenth Amendment and restore the democratic balance in the constitution.

The shortening of the presidential term by the Nineteenth Amendment from six years to five not only reduces the maximum number of years a person may remain in the office of President but also shortens the period for which the people have to wait before they can make a fresh choice on his successor.

Term limit and immunity

The office of executive president was in fact created by the Second Amendment to the 1972 Constitution shortly after the United National Party under J.R. Jayewardena rode to power with a commanding majority in Parliament. The Second Amendment was rushed through the National State Assembly as an urgent bill and with its enactment the office of President was transformed from a nominal executive to a directly elected office, invested with unprecedented powers.

Significantly, the President under the 1972 Constitution was given immunity from civil or criminal proceedings in respect of anything he had done or omitted to do either in his official or private capacity for the duration of his term in office because he was a nominal executive who always acted on the advice of the Prime Minister. When the Second Amendment to the 1972 Constitution created the executive presidency, it retained the provision by which the President was granted immunity (section 23(1) of the 1972 Constitution).

Grave misgivings were entertained by many about the Executive Presidency when it was first introduced with much haste and without much debate.  The 1978 Constitution incorporated the executive presidency, retained the provision granting immunity to the President but also introduced the two-term limit. Some of the misgivings ‘were slightly assuaged by the two-term limit’ which somewhat assured them that a President would enjoy immunity from suit for no more than twelve years. “This is already long enough for an injured party to wait for redress, for memories to stay fresh, for witnesses to remain available and healthy.” (See Suriya Wickremasinghe, Civil Rights Movement Statement on 18th Amendment to the Constitution).

The objective of the term limit provision would not be advanced, and indeed it would be undermined, if Articles 31(2) and 92 are interpreted to exclude from their application the two ex-presidents who have been twice elected before the Nineteenth Amendment was enacted. If these provisions are given a purposive interpretation then they should be interpreted to disqualify Mahinda Rajapaksa from seeking a third term.

Neither a new nor a ceremonial Office

It is Dr Jayawickrama’s contention that the Nineteenth Amendment abolished the existing office of President and replaced it with a new office. Moreover, the office of President created by the Nineteenth Amendment is “essentially non-executive, primarily symbolic and ceremonial, office of President”.

Section 3 of the Nineteenth Amendment does indeed declare that “Article 30 of the Constitution is hereby repealed” but its principal objective, in so far as the office of President is concerned, was to amend some of the provisions relating to the office of President, including Article 30 of the Constitution. This objective could have been achieved if in section 3 the word “amended” was used in place of “repealed”.

The Nineteenth Amendment without doubt pruned some of the powers of the president’s office but it did not make it a ceremonial office. Even after the Nineteenth Amendment, the President is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. He is directly elected and holds office for a fixed term.

The President makes appointments to the armed forces.  He has considerable discretion when it comes to the appointment of the Prime Minister following elections to Parliament, especially when they result in a hung Parliament.  He shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.

President Sirisena reportedly rejected three cabinet papers submitted by Ravi Karunanayake when the latter was the Foreign Minister, and also forced the latter’s resignation. He has the power of pardon. These are important powers. In addition he has at his disposal powers of patronage through which he can exert political influence. These are steps no ceremonial President would dare take.

It is the President who shall determine the number of Ministers in the Cabinet and the Ministries and the assignment of subjects and functions to such Ministers. When exercising this power, the President may consult the Prime Minister, where he considers such consultation to be necessary, but he is not obliged to do so.

Dr Jayawickrama says that the President “no longer enjoys immunity from judicial proceedings, and any person may now challenge his official acts or omissions in the Supreme Court.” That is not how Article 35 (1) reads. It grants the President immunity from civil or criminal proceedings in respect of anything done or omitted to be done by him, either in his official or private capacity. The Nineteenth Amendment does open the door to any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity but the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President to declare war and peace. The remedy under Article 126 is a limited one. It does not afford a remedy where the conduct involving abuse of power does not amount to an infringement of a fundamental right or language right. Moreover, the jurisdiction of the Supreme Court must be invoked with one month of the alleged infringement.

The President’s power to dissolve Parliament, even if the power maybe exercised only during the last six months of Parliament’s five-year term, gives him considerable leverage to determine the timing of such elections and influence their outcome. The powers of the President are likely to assume considerable proportions when he has the support of the majority of members of Parliament, which is likely to be the case if he is the leader of the party forming the government. A President who has the backing of a majority in Parliament would have a Prime Minister who would do his bidding.

Transitional Provision

An analysis of section 49 of the Nineteenth Amendment does not support Dr Jayawickrama’s contention that it became necessary because the Nineteenth Amendment created a new office of President. Section 49(b) declares “for the avoidance of doubt” 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; and (c)….”

The words “continue to hold such office” refer to the person who was holding office as the President immediately before the Nineteenth Amendment came into force. The office that was continued was the same office that existed before and none other.

If, as has been argued by Dr Jayawickrama, the transitional provision became necessary because the office of President would otherwise have become defunct, then why does it also refer to the office of Prime Minster? The office of President would have continued after the Nineteenth Amendment even without the transitional provision but it was introduced to avoid any doubts that might be raised in that regard.

The transitional provision declares that the office of President shall continue “subject to the provisions of the Constitution as amended by this Act.” If one were to accept Dr Jayawickrama’s argument that the Nineteenth Amendment created a new office of President, then President Maithripala Sirisena as the person holding office on the day preceding April 22, 2015 shall continue in office, but he could do so “subject to the provisions of the Constitution”. It follows that he ought to have formally assumed the newly created office by taking the oath of office. There is no evidence that he did that after the Nineteenth Amendment was enacted, which would lead to the conclusion that he has not been lawfully in that office since then.

Conclusion

The Nineteenth Amendment pruned some of the President’s powers but it did not transform the office of President into a nominal executive. It would be a mistake to regard the office as merely ceremonial.

The provision imposing the term limit has a democratic basis and its objective is to prevent abuse of power. It is premised on the rationale that the perpetuation of power in the same person is likely to lead to its abuse.

Mahinda Rajapaksa may not seek election to the office of President as he is disqualified from so doing.