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On 19 November 2010, Mahinda Rajapaksa, who had been President elect for 10 long months since the dramatic 26 January poll, took his oaths 
on the steps of the Presidential Secretariat.
The entrance to the historic building that housed the first Parliament of independent Ceylon had been transformed on that November morning. At the auspicious time of 10:16 a.m., emerging from behind an enormous backdrop of the rising sun, the President elect greeted his adoring crowds at Galle Face with clasped hands, before being administered the oath of office by then Chief Justice, Asoka De Silva.
Seated in the front row of the VIP dais was Shirani Bandaranayake, then still a Judge of the Supreme Court. Bandaranayake, who would assume office as Chief Justice in May 2011, was impeached by the Rajapaksa Government in January 2013, by a process deemed flawed and unconstitutional by the country’s highest courts.
Just one week after the January 26 poll, Bandaranayake had been part of a seven-Judge bench of the Supreme Court that decided on the constitutional question referred to them for interpretation by the President elect, as to when his new term of office would begin and end.
Fortune’s fool
The matter had been ruled on once before, during President Chandrika Kumaratunga’s tenure. On 26 August 2005, Kumaratunga’s own Chief Justice appointee, Sarath Nanda Silva, presided over a five-Judge Supreme Court bench that determined Kumaratunga’s second term commenced soon after the December 1999 presidential poll.
Silva, who had administered a second secret and controversial oath of office to President Kumaratunga in November 2000, ruled that a presidential poll had to be conducted before the end of 2005, effectively sending Kumaratunga packing within 11 years.
The verdict’s greatest beneficiary at the time was the SLFP presidential nominee and then Prime Minister, Mahinda Rajapaksa. He would now contest the UNP’s Ranil Wickremesinghe for the executive presidency one year earlier than the Government had initially claimed.
Five years later, President Rajapaksa found himself attempting to turn that verdict on its head. The seven-Judge Supreme Court bench ensured the February 2010 ruling would supersede the Sarath Silva judgment of August 2005 and allow the President to assume his second term of office 10 months after the presidential election, in November 2010.
One would think that would have put an end to the constitutional tangles surrounding the election and assumption of office of a president. But like the proverbial bad penny, the constitutional headaches keep cropping up. The trouble with needing to keep running back to the Constitution for clarity on ambiguous clauses or provisions is that it often puts incumbent presidents at the mercy of a Chief Justice and Judges of the Supreme Court.
A question of dates
As the Rajapaksa administration gears up for a year of provincial and national elections in 2014, the question of how soon a presidential poll can be declared has become a major preoccupation.
Opposition and political analysts have been insistent on the President’s desire to seek a fresh mandate and a third term in office in 2014. As speculation grew, the prospective polling dates have ranged from January 2014 to February 2015.
But when the news broke vaguely in early November last year that the President had decided to seek direction from the Supreme Court as to how soon during his second term he could declare fresh presidential elections, it was clear a big election was on the Administration’s mind.
All indications are that the Rajapaksa Administration prefers to poll early in 2014, but that would mean revisiting once again the August 2005 and February 2010 rulings of the Sri Lankan Supreme Court, since the matter directly deals with the dates of a President’s second term.
Mahinda Rajapaksa’s supporters, including his regime’s alliance partners, the Jathika Hela Urumaya, strongly petitioned the Supreme Court in 2005 for early elections that went in the SLFP nominee’s favour.
In 2010, President Rajapaksa himself, led by Mohan Peiris, his then Attorney General, argued that the President had to assume office on 19 November 2010, on the basis of the Third Amendment to the Constitution which stipulates that a person elected president if he is also the incumbent, “shall hold office for a term of six years commencing on such date in the year in which that election is held or in the succeeding year, as corresponds to the date on which his first term of office commenced, whichever is earlier”.
Major deficit in 18A
This argument, upheld by seven Supreme Court Judges, gifted President Rajapaksa an additional 10 months of his first term, a provision President Kumaratunga, who argued the same case on the basis of her November 2000 oath-taking, following the December 1999 poll, was expressly denied.
What it also means is that under Article 31 of the Constitution, President Rajapaksa, because of his delayed oath taking, can only declare elections to contest for a third term in office on 19 November 2014, four years after he assumed office.
The matter would have been constitutionally straightforward if not for the Government’s decision to enact the 18th Amendment to the Constitution in September 2010, two months before President Rajapaksa assumed office for the second time.
The tearing hurry with which the 18th Amendment was drafted and enacted – as an urgent bill– contained a major flaw. The widely criticised Amendment had removed presidential term limits but failed to specify how far into an incumbent President’s second term he could seek re-election, even though the amendment had empowered him to contest elections unlimited times.
The question of whether in the absence of such a clarifying provision, the President would revert to the original stipulation of Article 31, which permits an incumbent to declare elections four years after the assumption of office, is a matter of constitutional interpretation.
Reference only to a ‘first term’
Compounding the issue is the phrasing of this provision in the 1978 Constitution, which alludes only to a first term of a sitting president.
Article 31 (3) (a) expressly states that the President may, at any time after the expiration of four years from the commencement of his first term of office, by Proclamation, declare his intention of appealing to the People for a mandate to hold office, by election, for a further term.
Obviously, preceding the 18th Amendment by 28 years, Article 31 that was amended by the J.R. Jayewardene administration in 1982, envisioned a presidency limited to a maximum of two terms, or 12 years. A sitting President therefore could only seek another election in his ‘first term’.
Constitutional experts and democracy activists also point to the issue of presidential immunity provisions that were intended initially to protect an incumbent president from suit for a maximum of 12 years in office. They argue that it is a fundamental tenet of democracy that the period of protection is limited and that even an all-powerful president is liable to be answerable under the law one day when he no longer holds office.
Immunity for life
“The immunity clause was intended to protect a sitting president for a finite number of years. In fact that is why the office of the president is afforded these sweeping powers by the Constitution, because there was a time limit on it. So it is with immunity. As it is our president serves one of the longest terms in office with six years. No one intended that immunity could be granted to one person for life, that would be highly undemocratic,” Attorney-at-Law and activist J.C. Weliamuna told the Daily FT.
With the 18th Amendment granting an incumbent the right to contest elections repeatedly, a single person could effectively be immune for as many terms as he happens to win.
While the transparency and accountability issues created by a lengthy incumbency will bother the Government much less, the lacuna in terms of clarity about early elections may compel President Rajapaksa to once more put his presidential fortunes in the hands of the Supreme Court or bring a fresh amendment to repair the omission.
So far, neither prospect appears to be particularly alluring.
Legal advisors are warning President Rajapaksa that the best case scenario is an election in early 2015, declared at the end of this year. While reports surfaced about the likely reference of the third term election question to the Supreme Court, the Government has remained silent on the issue so far, although it is unclear whether the interpretation was quietly sought and answered.
Chief Justice Mohan Peiris, who recently presided over a challenge to the Government’s 2014 Appropriation Bill, intimated in open court that the Bill had been referred to the Supreme Court by the Government and checked for consistency with the Constitution, although the referral and the determination were never made public at that stage.
With a precedent being set, legal analysts say there is no reason why other constitutional questions cannot thus be referred to the highest court for interpretation confidentially, without allowing the public to intervene with arguments as per the usual practice.
Unfavourable first reading?
Whispers in political circles meanwhile indicate that in the initial reading of the issue, the interpretation has been unfavourable to holding presidential polls earlier in the year. Astrologically and politically, this is less desirable for an administration that was hoping to capitalise on the international pressure likely in Geneva in March this year, its chairmanship of the Commonwealth and the alignment of stars that favour the incumbency if elections were held in the first or second quarter of the year.
Attempting to amend the Constitution again, specifically with reference to a presidential third term, is going to prove immensely problematic for a Government, whose alliances in Parliament are hanging by the barest of threads.
A two-thirds majority to permit an early election in which President Rajapaksa will contest for a third time will be difficult to garner, with UPFA coalition partners like the Sri Lanka Muslim Congress going public with the admission that their support for the 18th Amendment in Parliament in 2010 had been a mistake and the Sri Lanka Freedom Party old guard straining on the leash.
The Rajapaksa Administration’s best hope therefore lies in a favourable interpretation by the Supreme Court on the election dates. Even so, without turning his own arguments on their head when he made the case for a delayed assumption of office in 2010, President Rajapaksa will be unlikely to declare elections before November 2014. If the Peiris Supreme Court renders an even more complicated ruling, it may call for a major rethink of strategy for the Government.
Shifting sands
Allegiances have a way of shifting on Hulftsdorp Hill. President Kumaratunga learned that to her peril in 2005 when her handpicked Chief Justice Sarath N. Silva swung the other way. President Jayewardene suffered a similar experience when his Chief Justice choice, Neville Samarakoon, ruled against the same Government that had appointed him to the office from the Private Bar.
Shirani Bandaranayake, who was at the helm of several highly-controversial decisions including the 18th Amendment, had a change of heart in her second year in office, leading to spate of decisions that went against the incumbent administration in late 2012. The attempt at redemption, of seeking to alter the status quo, came at a heavy cost. But the weight of high office has a way of lying heavy upon the conscience.
Recent rumblings in Hulftsdorp with regard to certain highly-publicised cases such as the Sri Lanka Law College issue and its controversial principal indicate that one year after the Rajapaksa Government replaced the hurriedly-impeached Chief Justice Bandaranayake with its former legal advisor and Attorney General, all may not be well in paradise.
In the case of CJ 44, Peiris was not even President Rajapaksa’s first choice. It was from Attorney General that Mohan Peiris was initially expected to make the Chief Justice chair, but he was overlooked in favour of Bandaranayake in 2011.
During the latter part of impeachment proceedings against Bandaranayake, it was not to Peiris that the President made overtures and offers to replace her, but to former Attorney General and LLRC Chairman, the late C.R. De Silva and other senior lawyers. But De Silva rejected the offer, given the controversial nature of the impeachment and, at the insistence of high officials within the administration, Peiris was sworn in as the new Chief Justice in post-impeachment Sri Lanka.
To date, he suffers a lack of legitimacy and challenges to his position due to the circumstances of his appointment. There have been no signs of rebellion so far. But if the tenure of virtually every Chief Justice in recent times is any indication, when individuals begin to play for legacy, almost everything changes.
President Rajapaksa cannot risk any more impeachments after Bandaranayake’s ‘trial’ by Parliament created a major crisis of credibility and legitimacy for his Government and very nearly cost him the Commonwealth Summit. The ghosts of the Bandaranayake impeachment will haunt Sri Lanka in Geneva in March and throughout 2014, but never more than if complete loyalty is replaced by even the vaguest, most insignificant spark of dissent in Hulftsdorp.
