19 November, 2018

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The Term Limits & Ex-Presidents

By YLS Hameed

YLS Hameed

The 1978 Constitution introduced by the late President JR Jayewardene had limited the terms of Presidents to two in terms of Article 31(2). This term limit was lifted through the 18th Amendment which enabled former President Mahinda Rajapaksha to contest for the third time after two successful terms.

However the 19th Amendment reintroduced the restriction on the terms of Presidents to two by Article 31(2). Arguments are now being brought out to the effect that this restriction does not apply to former Presidents and only to current and future presidents.

Two important arguments are put forward in this regard.

One is that the restriction brought about through the 19th Amendment is not retrospective and therefore does not bring the terms of former Presidents within its ambit. To support this position, it is argued that the restriction imposed in terms of Article 31(2) was not in the statute book when the 19th Amendment was introduced and that therefore the restriction should be considered anew and that as such it did not apply to former Presidents. Prof G L Peris cites the opinion of the Supreme Court with respect to the duration of the incumbent President that it is five years notwithstanding the fact that People elected him to serve for a period of six years which meant that it did not have retrospective effect.

The other is that the Presidency under 19A is a new Presidency whose office was never held by former Presidents like Mahinda Rajapakshe. To substantiate this position Prof G L Peris refers to section 3 of 19A which states ‘ Article 30 of the Constitution is hereby repealed and the following Article substituted therefore:-

30(1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, Head of Executive and of the Government and the Commander-in- Chief of the Armed Forces.
(2) The President of the Republic shall be elected by the People and shall hold office for a term of five years.’

This Article and the repealed Article 30 are identical except for the replacement of the word “six” with the word “ five” in sub Article (2).

He also tries to have recourse to the various restrictions placed on the powers of the President under 19A in order to add vigour to his position.

This Article tries to examine the above positions and arguments in the light of Constitutional provisions.

Introduction of the Executive Presidency

The Executive Presidency was introduced in 1978 through Article 4(b) of the Constitution which read,
“ the executive power of the People, ………shall be exercised by the President of the Republic elected by the People;”

This Article created the office of elected President and vested the executive power in him. There are several other provisions which describe or explain what this executive power is and how it should be exercised. They are in reality procedural or descriptive in nature and draws the legal force from Article 4(b) which in turn derives its force from Article 3.

The Mechanism by which the Executive Presidency was Created

Article 3 of the Constitution lays down that In the Republic Sovereignty is in the People and is inalienable. And that Sovereignty includes the powers of Government, fundamental rights and the franchise.

Sovereignty in short means complete/ absolute or unlimited or unquestionable power. This power belongs to only the People and it includes ‘ powers of Government’.

Powers of Government can mainly be divided into three. They are the legislative, the executive and the judicial powers. These powers are vested in the different organs of Government by the People through Article 4.

Legislative power

The People have vested part of the legislative power in Parliament and retained the rest with them as laid down in Article 4(a). In other words, the People have imposed substantive limitation on the legislative power of Parliament in respect of certain areas of power.

The legislative power of Parliament springs from this Article only. Various other articles relating to law- making are only extensions of or elaboration on this Article . This Article can never be replaced or materially altered without the approval of the People.

Executive Power

Similarly, the Executive Presidency installed by the People through Article 4(b) can not be done away with and replaced by a new kind of Presidency by Parliament without the approval of the People at a referendum. All other articles in respect of executive powers are mere extensions or descriptions of this Article only and consequently obtain their legal force from this sub Article.

Article 30

Article 30 of the 1978 Constitution never introduced an ‘ Executive Presidency’. It only reiterated the creation of the elected Executive Presidency in Article 4(b) and elaborated on the key functions of the Executive President and the duration of his office. This Article remained intact even after the 18th Amendment.

Though the 19th Amendment repealed it and substituted it with literally a new executive Article the substance of the Article remained unaltered except for the reduction of the duration of the term from 6 years to 5 years. In effect it is the same article with a minor Amendment.

What is noteworthy here is that this duration of the term of office was not included in Article 4(b) and therefore did not affect that Article.

In short, when the original Article 30 had not created the Executive Presidency, even if it is, for the sake of an argument, granted that this is totally a new article, it could not have created a new executive Presidency beside the one already put in place by Article 4(b). It is Article 4 that elaborates on how Sovereignty is exercised and enjoyed. This Executive Presidency is a device by which the Sovereignty of the People is exercised and enjoyed.

Therefore Article 30 in the 19th Amendment could not have introduced a new executive Presidency overriding Article 4(b).

Altering the Powers of the President

The changes effected to the powers of the President in terms of the 19th Amendment was within the powers of Parliament vested in it in terms of Article 4(b). A contrary position in the opinion of the Supreme Court would have required a referendum. Parliament is incompetent in view of the substantive limitation placed on it to replace the Presidency with a new one or alter its power materially without the approval of the People.

Therefore it is illogical to claim that Parliament has done something which it is Constitutionally incompetent to do.

The Question of Retrospective Effect

Constitutional provisions are generally not retrospective beside the presumption that laws are always prospective unless contrary intention is explicitly stated. Therefore there is no issue about retrospective effect. What Article 31(2) does is to lay down an additional disqualification to the list contained in Article 92.

The issue here is whether the two terms enjoyed by the former presidents prior to the introduction of 19A can be counted as a disqualification for the purpose of Article 92. In other words, “ should former presidents who held two terms should be considered as having held no terms of office of President for the purpose of this Article.

What is crucial in determining this is whether at the time of tendering nomination for the election of President, one had already been elected to the office of President twice. Simply because one held the office prior to the introduction of the new disqualification, can it be treated as no disqualification at all.

For instance, a person who has served six months of imprisonment during the period of seven years immediately preceding is disqualified to be elected to Parliament or to the office of President. Let’s imagine that an amendment is brought to reduce this to three months. Can one claim that he served the prison term for four months prior to the amendment which has no stated retrospective effect, and that therefore he is not disqualified.

Therefore it can be summed up that the Executive Presidency introduced by Article 4(b) remains intact. There is substantive limitation on the power of Parliament to replace the Executive Presidency or to alter its power materially without the approval of the People.

Article 30 never introduced a new Presidency and consequently it has not replaced the Presidency with a new one.

The changes effected to the powers of President under 19A is within boundaries of the legislative powers of Parliament which were incapable of altering the character of the Presidency materially as envisaged in Article 4(b).

The question of retrospective effect did not arise because it is about mere qualification of a citizen to contest the Presidential election as much as new qualifications are frequently laid down for various offices in Government which does not give rise to the question of retrospective effect.

Therefore former presidents who have twice been elected can not run for the third time for the Office of Presidency.

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Latest comments

  • 0
    0

    If GL and MR think that MR can contest, what they must do is to submit a nomination paper. They simply won’t take the chance. If they are so sure, they should stop arguing and announce MR as the ‘pohottuwa’ candidate now.

    • 0
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      Before term limits there should be an AGE LIMIT for corrupt politicians of 60 years.
      This generation of corrupt and uneducated clowns are living longer and blocking the Baby boomers from their rightful place in the sun.
      Ranil, Jarapassa brothers and doddering Sambandan must go NOW!

  • 5
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    Mahinda’s first candidacy: To become president
    Mahinda’s second candidacy: To become a dictator
    Mahinda’s try for a third candidacy: to stay out of jail.
    ..

  • 3
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    Ostriches don’t bury their heads in the sand—But they do dig holes in the dirt to use as nests for their eggs. Several times a day, ostrich put the head in the hole and turns the eggs. Sri Lankan political leaders are like Ostriches; Mahinda, Ranil now Maithri are cheking and turning eggs for 2020. Sh.t Head Sri Lankans think these three corrupt individuals are capable of burying their heads in the sand and survive.

    Bloody Sri Lankan idiots and fools have not realised that there is no democracy in the country. Thousand rupees, packet of rice and a drink of cheap arrack decides whether to join any political party or not. Given the abysmal economic/monetary situation created by present corrupt political leadership with two ugly heads (Ranil and Maithri), any one will take “Thousand Rupees, Rice Packet and a drink of Cheap Arrack” to join the mega circus lead by despot Mahinda and his family. Bloody S..t head Sri Lankans cannot and will not make any effort to think of any real democratic changes such as electoral reforms, credible justice system or electing a leader other than bastard trio currently hoodwinking the masses. It seems Sri Lankans have been living under a pile of crap since 1953 and they seem to enjoy the warmth provided by heap of crap though it smells to high heaven.Wake up idiots,you have been in this predicament created by UNP, SLFP and party of degenerates (Pohottuwa). When are you going to smell the roses at least have courage to think about your children and their future.

    • 1
      0

      BJP.
      A good piece of writing ..
      I too agree that there is no democracy in Sri Lanka ..so sorry , any one who comes to power becomes a king ..
      They want live and die as leaders .
      Sri Lankan people are stupid to elect them all ..50% of Mps do not a GCSE IN SRI LANKA what do you expect from these people ..

  • 0
    0

    In USA ..
    This is a good debate on the role and power of AG nominations..
    He is asked what makes a good judge ?
    He said maintaining impartiality and independence of judiciary ..?
    Can people in Sri Lanka do that ..
    We manipulate laws as and when President wants to ..
    I wonder when M&s and Ranil make some changes to constitution to Ban MR from constesting agian..
    After seeing Colombo crowd they would have done something like this

  • 0
    0

    ” There shall be a President of the Republic of Sri Lanka, who is the Head of the State, Head of Executive and of the Government and the Commander-in- Chief of the Armed Forces. ”

    That is S30 (1) and this is the article bringing into existence of an executive president. Article 4(b) simply assigning his executive power to executive president. Further 4(b) is leaving it to the people to decide their executive president. The City granted permission {S30(1)} to build the house, The contractor {A4(b)} build the house, the owner {citizens} seated{election} the tenant {New King} . The English is plain and simple in both article 4(b) & S30. No Citizens are confused on that other than YLS Hameed. There is no point in convoluting that because YLS Hameed has to know that if there is a case in Supreme Court, the plaintiffs’ lawyers are not going to allow YLS Hameed to convolute the plain English.
    The biggest blunder YLS Hameed doing is he does not understand that when the S30 was repealed the president ceased to exist and Republic of Lankawe vanished into thin air, irrelevant of if it is for a moment or for millennium. No Constitution would be written like that because the new constitution would lack legitimacy by cutting off from past history. But Sirimavo intentionally did it because she wanted to cut off from the British Empire history and wanted to create the republic afresh. This is why SJV stayed away from participating in 1972 constitution. By his action, SJV made the New creation (1972 constitution) solely biding on Sinhalese and Muslims only, not the Tamils.

  • 0
    0

    When Jayampathy Gang repealed S 30, that second people’s sovereignty was hijacked by Jayampathy Gang. He nullified the republic, abolished the presidency and imprisoned the EP. People could not appoint an EP under S 4(b) because again it is Sympathy Gang was dominant. He recreated the Presidency and re appointed by S49, his transition clause. Remember this transition clause was felt important to Jayampathy Gang, but YLS Hameed is refusing to recognize as it is exciting in the 19A. In my earlier comment, I called it continuation clause but DR.NJ had called it transition clause. Dr.NJ’s argument is S 30 abolished and recreated presidency, but I said Jayampathy Gang had contended somewhere else that Removing Presidency without referendum is not possible, so even though they had drafted that into 19A, it did not happen- it cannot happen. What the best thing legitimately could have happened at that moment is, S30 did not cease to exist any moment so the one word repealing of it is null and void. Because of that, the new S30(2) “five years” could not get loaded into the constriction as the Old “Six Years” did not pave the way for it. So, if New King wants he can sit there for six years without any legal challenge to him. But rest of the validity of the 19A will have to be debated in the Supreme Court. The serious flaw of firing the President by abolishing the presidency, would force Supreme Court to attach the rest of the Authority Changes to this flaw and make them too invalid.

  • 1
    0

    lol so 19th s null and void?

  • 0
    0

    And here we are nit-picking as to how to interpret a sentence or two in the constitution!
    .
    Most of us do not seem to pay any attention to the news released by the President’s Commission of Inquiry (PCoI) into management and bookkeeping in past and present SriLankan airlines. The abject situation was NOT due to incompetency alone but the culture of corruption/nepotism/impunity completely overpowering and dominating the SOE. Several SOEs are in dire circumstances and so are other services like health, education, law and order.
    Have we got our priorities right?

  • 2
    1

    For the idiotic donkey proffessorri GL’s stunts, one has to laugh not with the mouth but with the back hole. This country is in this hell hole because of this kind of stupid so called educated people. They are mean, organ, greedy and selfish to their core, and hence, they think and want all and everything for them but not for others plus these blood sucking leaches and parasites want to live and have jolly good time on poor people’s taxes.

    • 2
      0

      Peyal,
      It is mind boggling; why Sr Lankans are so idiotic to believe Bastard Politicians and their interpretation of the law and order of the day.
      At the the time of independence 7% of the Sri Lankan population controlled the economy, power in the parliament and the wealth of the nation. After seventy years 7% has increased to about 14% and they manage and control 86% of the wealth, power and economy.On the other hand 86% of the people are compelled live and share 14% of the national wealth and assets.That is the bottom line.

      A bastard political son recently blew more than Rs.2 Million for one day on his Marriage. The rest of the Sri Lankan idiots are compelled to live with approximately Rs.1000/ per family per day. Do these sh.t head Sri Lankans understand why they are eternally poor but it ia am,azing, they keep on cheering and admiring the actions of Bastard politicians such as the one who spent more than Rs.2 million on one night.

  • 0
    0

    All citizens of Sri Lanka are equal. But Rakapaksas are More Equal,: So thinks Professor G.L.Peiris! He may have been a Professor, but today he is a miserable slave of the Rajapaksa family!

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