By S. I. Keethaponcalan –
Many people in Sri Lanka thought that President Sirisena would leave office in January 2020. The conventional wisdom was that Sirisena’s “term issue” was resolved when the Supreme Court (SC) ruled that he was entitled to a five-year term; not six years. This ruling was delivered in January 2018 in response to a quarry from the president.
Last week, Dayasiri Jayasekara, General Secretary of the Sri Lanka Freedom Party (SLFP), announced that the president might seek the opinion of the SC on the expiry date of his term. The president’s team seems to believe that his term ends in May 2020, not January.
The crux of the matter lies in the 19th Amendment to the Constitution. President Sirisena was elected in January 2015 for a term of “six years.” The 19th Amendment reduced the time from six years to five years. The SC relied on this change for its decision in January 2018. Now, if the president goes back to the SC with the new question, he will rely on the fact that the 19th Amendment was certified on May 15, 2015.
According to newspaper reports on this issue, opinions differ on the last date of President Sirisena’s term in office. Some believe that it ends on January 8, 2020, and others seem to think that he can continue until May.
Jayasekara’s announcement forced me to go back and recheck the 19th Amendment. I got the feeling that President Sirisena has a case here. First, Section 1 (2) of the Amendment states that “the provisions of this Act other than the provisions of section 9 … and the provisions of section 15 shall come into force on the date on which this Act comes into operation.” Section 9 deals with the Prime Minister and the Cabinet of Ministers. Section 15 is about the term of Parliament. The point is that everything else in the Amendment came into force when the Amendment became operational.
The presidential term related arrangements are in section 4 and section 49 of the 19th Amendment. Dealing with the presidential term, Section 4 (2) (b) substituted the words “for a term of six years” with the words “for a term of five years.” Section 49 is called “transitional provisions.” Section 49 (1) (b), part of the transitional provisions 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.”
In other words, the president was allowed to continue, albeit with a reduced term in office, by the 19th Amendment. The Amendment came into force on May 15, 2015. In my view, therefore, the president’s five-year term commenced on May 15, 2015. His term should end on May 14, 2020.
Ask the Court
Jayampathi Wickeremaratne, one of the architects of the 19th Amendment has already stated that the president’s term ends in January 2020. Hence, it is clear that this subject is controversial and has the potential to ignite intense public debate if the president finally goes to the Court with the question.
What is imperative to note is that provisions related to this question are, at least, vague. When the president illegally dissolved the Parliament last year, he did not have the Constitution on his side. The 19th Amendment plainly stated that the president “shall not” dissolve Parliament until the expiration of four and a half years from its first meeting. In this issue, it is not the case. The provisions are not explicit. Hence, they could be subject to interpretation. This is good news for the president. The Court might give the benefit of the doubt to the president. This is precisely why I think the president will eventually seek the opinion of the SC.
He has the constitutional authority to approach the SC and will not lose anything by asking the SC to rule on this. Moreover, he has everything to gain from a favorable ruling. First, an additional four month in the office could be immensely valuable when the president does not have a viable path to the presidency for the second time. Second, the ability to dissolve parliament as soon as the four and a half years of mandatory period expired could open up new possibilities in terms of strategizing his future. Right now, his options are minimal. He can contest the presidential election and lose or concede it to the Sri Lanka Podujana Peramuna (SLPP) candidate.
The possibility that President Sirisena’s time in office could be extended by four months could be bad news for the United National Party (UNP). Currently, the party could ignore the president while extending basic formal courtesies because the president cannot dissolve the Parliament and need to face the voters first. If allowed to stay in office until May, the president could dissolve the Parliament in February and force a general election on the UNP.
Facing the general election first will not be in the best interest of the UNP. The party has a better chance in a presidential election. Hence, it might prefer the presidential election first followed by the general election. The party probably want to win the presidential election and then go for the general election as soon as possible. This preferred option of the UNP could be disturbed by Dayasiri Jayasekara’s announcement.