President Maithri’s future political decisions will depend on SC ruling on his term
BY GAGANI WEERAKOON
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?
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.
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