A Machiavellian exercise?

Why is the Government now, nine years later, without any issue having been raised by the Supreme Court or by any other court or tribunal, or in Parliament, or in any other forum, seeking to amend the Constitution for the sole purpose of replacing the words “six years” in Article 83 with the words “five years”?

In the 16th century, the Florentine diplomat Niccolo Machiavelli, in his book “The Prince”, outlined ruthless ways to achieve and retain political power. The events of the past two weeks lead one to wonder whether attempts are now being made to give practical effect to some of those techniques in this country.

On Monday last week, the Chief Justice heading a Bench of five Judges of the Supreme Court affirmed that the President’s tenure is five years, as provided in Article 32(2) of the Constitution following the 19th Amendment adopted by Parliament in 2015. The petitioner, a businessman, who challenged the validity of the 19th Amendment, and sought to prevent the Presidential election from being held this year, was ordered to pay Rs. 100,000 as costs. 

On Monday, this week, a Bench of three Judges of the Supreme Court headed by the Chief Justice summarily dismissed another attempt to postpone the Presidential election on the ground that the 19th Amendment had not been validly passed, and ordered the lawyer-petitioner to pay Rs. 500,000 “for deliberately abusing the court process and misleading the court by filing this kind of frivolous application”. 

The Cabinet of Ministers has now announced that approval has been granted to introduce a Bill to amend the Constitution for the purpose of bringing Article 83 into conformity with the amendments made by the 19th Amendment to Articles 30(2) and 62(2). In other words, the Government is claiming that the 19th Amendment was not validly passed in 2015 – an argument that has been twice summarily rejected by the Supreme Court.

The 19th Amendment

The 1978 Constitution provided in Article 30(2) that the President of the Republic shall hold office for a term of six years. It provided in Article 62(2) that unless sooner dissolved, every Parliament shall continue for six years from its first meeting. Article 83 contains a list of 13 Articles (including it) which can be amended only if, following a vote in favour of not less than two-thirds of the whole membership of Parliament, the Bill is also approved by the people at a Referendum. Among these entrenched Articles are 30(2) and 62(2), but Article 83 becomes operative only if an amendment seeks to extend the term of office of the President, or the duration of Parliament, to over six years.

Following the Presidential election of 2015, Parliament enacted the 19th Amendment to the Constitution. That Bill which was presented by Prime Minister Ranil Wickremesinghe, following approval by the Supreme Court, sought to amend Article 30(2) to reduce the term of office of the President to five years, and to amend Article 62(2) to reduce the duration of Parliament to five years. That Bill received the support of all the Members of Parliament except one. The Bill did not seek to amend Article 83(2) since its objective was to reduce, not extend, the President’s term of office or the duration of Parliament beyond six years.

A non-issue

This ostensible desire to achieve linguistic uniformity in the Constitution (since it will have no effect on the term of office of the President or of Parliament) is wholly unnecessary and makes no sense whatsoever in constitutional terms. Why is the Government now, nine years later, without any issue having been raised by the Supreme Court or by any other court or tribunal, or in Parliament, or in any other forum, seeking to amend the Constitution for the sole purpose of replacing the words “six years” in Article 83 with the words “five years”? Why is the Government attempting to set in motion a parliamentary debate followed by a national referendum (the latter at a cost of at least Rs. 10 billion and a massive disruption of public services) a few weeks before the equally expensive and equally disruptive Presidential election scheduled for September or October this year?

A self-serving objective?

In the absence of any rational explanation, one is entitled to speculate on whether there could be some devious, deceitful or self-serving objective; some less discernible, perhaps more sinister or Machiavellian objective.

Could it be the expectation that at the committee stage, an amendment would be moved to achieve linguistic uniformity not by replacing the words “six years” with “five years” in Article 83, but by replacing the words “five years” with “six years” in Articles 30(2) and 62(2), thereby restoring the 1978 Constitution to its original form? That will not require to be approved by the people at a referendum, but only by the affirmative votes of two-third of the parliamentary membership. 

If that is the hidden agenda, it will, of course, enable the Government not only to save the enormous cost of a referendum, but may also provide the Members of Parliament elected in 2020 with an additional year in office. Whether it will provide the President, who was elected by Parliament to “hold office only for the unexpired period of the term of office of the President vacating office” (Article 40) to continue in office for an additional year may need to be determined by the Supreme Court, having regard to the fact that his predecessor who fled the country in 2022 was elected in 2019 to serve a term of only five years.