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A Tale of Two Terms

| by Maduranga Rathnayake

(August 16, 2014, Melbourne, Sri Lanka Guardian ) Can the present President of Sri Lanka be elected for a third term? The pre-18th Amendment (to the Constitution) position was that “No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People” (Article 31(2)). The 18th Amendment repealed that Article.

The general rule is that unless it is expressly stated to be of retrospective effect legislation takes effect from the date of enactment (or any future appointed date). Therefore, the repeal of the said Article came into effect from the date of enactment of the 18th Amendment. What would be the present President’s legal status if he wished to contest the next presidential election? Some have argued due to a confusion of several important dates that as the present President was sworn in the office President for a second term before the 18th Amendment was enacted (which is a factually wrong assumption) the bar in Article 31(2) before its repeal applied to him, thus disqualifying him from being a presidential candidate for a third term. Let us suppose for a moment that in fact the present President took his oath for his second term prior to the said Article was repealed; then it would be an interesting issue to examine, also whether a former president who had been elected twice to the office could contest at the next presidential election.

The wording of former Article 31(2) [the Article] has no reference to a person taking of the oath or assumption of or having functioned in the office of President; it refers only to election in that to a “...person who has been twice elected to the office of President...”

What is the significance of the oath? A candidate once declared (by the election commissioner) as the person elected, if the Article is read plainly, then that person stands elected to the office of President for the purpose of the Article. Thereafter, “the person elected or succeeding to the office of President shall assume office upon taking... the oath...” (Article 32(1)). It appears that it is a pre-condition for the person so elected to take the oath in order to assume the office of President. What if the person elected fails (for some reason or another) to take the oath? Then he could not have assumed the office of President (which will warrant a fresh election though), but he certainly would be a person who was elected to the office. If the said hypothesis was extended to a candidate who was already sitting as President, then for the purpose of the Article he would be a “person who has been twice elected” irrespective of whether he took the oath and assumed the office for a second term or not, and under the Article he would be disqualified to be elected to the office of President for a third term at a later time. In other words a sitting President being elected yet not taking the oath and consequently not assuming office for a second term does not make any difference in so far as his disqualification to be elected for a third term by virtue of the Article.

What would then be the legal consequence if the Article was repealed before or after the present President was elected for a second term or took the oath and assumed office for a second term? What parliament has done in the 18th Amendment (by repealing the Article), like in any of its enactments, was to declare the legal status of, inter alia, a President’s (including an incumbent President) eligibility to be elected to the office of President for any number of terms if he so wishes. When the Article was repealed it forthwith (irrespective of at what point of time of the present President’s term of office it was repealed) placed the present President within the ambit of the new legal position. It is because of a very important principle, that is, the franchise. The right to contest at an election is part of the franchise which under the Constitution is part of sovereignty of the people and for that very reason the present President could not have been eternally bound by the pre-18th Amendment legal position. Let us by way of an illustration suppose a law mandated a punishment of 2 years for an offence and subsequently by an amendment to the law the punishment was changed to 4 years. What if the law was so changed while a person charged of committing the offence had his trial pending? He should continue to be tried under the old law. By contrast, the changes to a law directly impacting on the franchise should be recognised as an exception to the above illustration. The franchise as much as it is inalienable it has no real past or future, it exists in the present.

When at the point of time the present President ends his second term the Constitution contains no provision that prevents him from seeking to be elected for a third term, and similarly a former President should have no legal impediment to be contesting at the next presidential election either (However, it must be observed that the removal of the two-term ceiling on a President’s term of office is a constitutional disaster).