Sirisena, too, struck down by the tail-end presidential virus
Chandrika got it first, Mahinda got it badly and now Maithri shows the symptoms of the same viral attack
It’s a malady which has struck two presidents when they approached the tail end of their elected tenures to that high office. Chandrika got it good and well and tried to extend her term by a year. Mahinda got a severe attack when he tried not merely to extend it by a year but moved heaven and earth and the constitution to repeal the two-term presidential limit and rule forever -- though the people politely showed him the door when he tried to go for thirds. And now it seems that President Sirisena is also afflicted with the same virus.
He was showing all the symptoms of the acquired immune deficiency syndrome his presidential predecessors had fallen victim to; and not all the draughts of Yahapalana syrup he had gulped down bottoms up to fortify his defences against the deadly virus had served to prevent him from succumbing to its intrinsic virulence.
And now he has sought a second option from Lanka’s Harley Street of Law to determine whether his condition is incurable or not, whether ‘tis terminal or no.
This week it was revealed that President Sirisena had canvassed the opinion of the Supreme Court to give a ruling as to whether there was any impediment in law to him being president until 2021 January.
President Sirisena had asked the Supreme Court "Whether, in terms of 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 9th January 2015, have any impediment to continue in the office of President for a period of six years from 9th January 2015, the date on which the result of my election to the office of President was declared".
No problem with that. It is his presidential right and privilege in terms of Article 129( 1) of the Constitution, to refer to the Supreme Court for its consideration and for an opinion on such a matter. Mahinda Rajapaksa did the same. After having repealed the 1978 Constitution’s two- term limit on his presidency with his draconian 18th Amendment in 2010 which opened the gates for him to contest and rule as president in perpetuity, he still got the jitters in November 2014 of his absolute right to contest the presidential election in January 2015.
To clear any ambiguity -- even though his 18th Amendment clearly granted him the right to contest in perpetuity all presidential elections -- he sought assurance from the then Chief Justice Mohan Peiris, now known as the Phantom Chief Justice, to deliver an unequivocal opinion of his right to do so under the same Article 129 (1). Rajapaksa did not reveal to the public the opinion of the Supreme Court but, like he had done with reports of various commissions he had appointed to probe some scandal or another, kept it locked in his vault -- in the same manner he has kept the files of his ministers who served under his regime and MPs hidden in his safe for future use if need be.
As President Sirisena, in a statement clarifying his position issued by his office on Thursday, said, he made a reference to the Supreme Court to ascertain whether he can serve in office for six years because there were divergent views on his term limit in civil and political circles, as otherwise it could lead to confusion. The statement added that his predecessor had also made similar references to the Supreme Court in this manner. It said it was a right guaranteed in the Constitution.
No one doubts his right to canvass the opinion of the Supreme Court. That’s a right enshrined in Article 129 (1) of the Constitution. Neither can anyone hold it against him for seeking justification in doing so by making it clear to all and sundry that he was only following his former leader; and, presenting it as an example worthy of being followed, especially when one gets the legal shakes and seeks Hulftsdorp Hill’s air for added comfort. Both in the sphere of law and in the private domain of his mind, it is his undeniable right to exercise his privilege under Article 129 and seek Supreme Court counsel and justify the exercise to get the supreme all clear by making reference that he is only following in his once commended leader Rajapaksa’s footsteps.
Let’s now consider what all the fuss is about. And its legal import.
The 1978 Constitution under which Sirisena was elected President in 2015 explicitly states that the term of office of a president elected by the people shall be six years. The snag is that the 19th Amendment, which President Sirisena himself presented and through great difficulty got it enacted by a five sixth majority at the eleventh hour before his 100-day election pledge to do so expired, states that the term of office for a person elected by the people will be for a period of five years.
The Supreme Court listed the President’s request for an opinion on Thursday and invited the Bar Association and others to make their submissions on that day.
The Supreme Court Registrar Mrs. M.M. Jayasekera wrote to the President and Secretary of the Bar Association on Monday stating, "I have been directed by His Lordship the Hon Chief Justice to inform you that His Excellency the President, in terms of Article 129(1) of the Constitution, has referred to this court (regarding the above) for its consideration and for an opinion to be submitted to His Excellency on or before 14th January 2018” And she also made a similar request to the Attorney General.
The issue before the court was simple, yet, wrapped in a warp of ambiguity.
On January 9th 2015, Maithripala Sirisena had been elected by the people of Lanka to serve as President for a term of six years in accordance with Article 32(1) of the 1978 Constitution. No need for any debate on that score. The question was whether the 19th Amendment to the Constitution enacted three months later on April 22 of that year which, inter alia, declared that the term of office of a person elected by the people would be five years and not six would apply to the present incumbent, namely Maithripala Sirisena.
Though the 1978 Constitution makes provision for retrospective legislation to be introduced, in the case of the 19th Amendment the amending articles made no specific reference that it would have retrospective effect. Had it done so, then, no doubt, it would have been settled law and no recourse to the Supreme Courts would have been necessary to determine that the present President term of office was limited to five years under the new 19th Amendment. It would have been clear as crystal.
Thus on the face of it, and in the absence of any reference in the 19th Amendment that its provisions would have any retrospective effect on the term of office of the president elected by the people three months before its enactment to serve a period of six years in accordance with Article 32 of the 1978 Constitution would seem as a foregone conclusion.
In fact that was the line the Attorney General took when he rose to make his submissions on Thursday before the full bench Supreme Court. His argument was:
“The incumbent President was elected by the people for the office to the term of six 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 19th Amendment to the Constitution is operative after the incumbent President was elected for a term of six years by the people. 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.”
But is that so?
Transition article
The Attorney General was on solid ground when he stated “There cannot be retrospective effect unless it has been specified” or when he declared that “there is no applicable provision retrospectively in the amendment.” But was he waddling with a wobble in the boggy marshes of legal interpretation when he stated that retrospective effect of the presidential term of office has not been ‘ implied in any provision” of the 19th Amendment?
Perhaps it’s time to draw his attention to the transitional article of the 19th Amendment, Article 49 which states: (1) For the avoidance of doubt it is here
by declared that,
(a) the Seventh 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; (b) the persons holding office respective-
ly, 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
Does not the above clause, namely, Article 49 ( 1) ( b) imply a retrospective effect when it states that a person who was the president immediately before the 19th Amendment comes into effect on the 22nd of April 2015 shall continue to hold office as president thereafter but would only do so according to the provisions of the new amendment which, among others, declare that the term of office of a person elected by the people to the office of president shall be five years.
That is the hub of legal contention. And it is in the hands of the Supreme Court judges to decide on the matter. They will deliver their verdict today and announce to the nation whether Maithripala Sirisena can serve an extra year as President or whether he by his own act has forfeited the extra mile.
That then is the legal dimension. But isn’t there another dimension that Sirisena should have considered before seeking Supreme Court opinion? The political and moral dimension?
Even as chairman of the SLFP breakaway party Prof. G. L. Peiris said on Tuesday that he was ‘really taken aback by President Sirisena’s move’, so were the rest of Lanka aghast when it was revealed that Sirisena who had come to power as a confirmed presidential abolitionist was seeking Supreme Court sanction to extend his term of office by another year. It was akin to a Saivite Brahmin who had been a vegetarian all his life and had promoted vegetarianism as the noble way of living for others to follow suddenly asking his Gods whether it was okay to eat meat.
For unlike Chandrika Bandaranaike who lost one year of her tenure because she called for an election one year before her first term as president expired, unlike Mahinda Rajapaksa who made it manifestly clear that he wished to be president for life when he brought the 18th Amendment repealing the two-term presidential limit, Maithripala Sirisena rode to power with the promise of abolishing the entire office of the Executive Presidency and erasing it from the constitution tattooed on his breast.
Though unable to do so within the ‘ 100- day’ pledge he had made to the nation he successfully managed with the introduction of the 19th Amendment to cut some of his presidential powers and also his own term of office by an year. And even as he hailed his great sacrifice and proclaimed it as an act akin to the legendary King Sri Sangabo cutting his own neck and handing it over to a passerby merely because he asked for it, so did the nation express its appreciation in loud applause.
And, immediately after the 19th Amendment Bill was presented to Parliament for approval in April 2015, if he had entertained second thoughts about his term of office being reduced by a year under the new amendment and
felt grieved, he did not deem fit to seek recourse to the Supreme Court and invoke its jurisdiction under Article 121(1) of the Constitution which states:
“The jurisdiction of the Supreme Court to ordinarily determine any such question as aforesaid may be invoked by the President by a written reference addressed to the Chief Justice or by any citizen by a petition in writing addressed to the Supreme Court. Such reference shall be made, or such petition shall be filed, within one week of the Bill being placed on the Order Paper of the Parliament and a copy thereof shall at the same time be delivered to the Speaker. In this paragraph "citizen" includes a body, whether incorporated or unincorporated, if not less than three- fourths of the members of such body are citizens.”
Instead he wallowed in his personal sacrifice and gloried in his triumph when the 19th Amendment was enacted by a whopping five sixth majority in Parliament and so did the nation clap in unison the selfless nature of Sirisena to place the country before self; and from a position of strength sacrifice his presidential powers and his own life span as President.
Pledges
But there was more wanting. Lopping a few branches of the sturdy presidential oak alone would not do to bring it down. Sirisena’s crusade to abolish the executive presidency had still not been achieved. And, true to his manifesto pledge, true to his election promises, he continued to reiterate his devout commitment to delete the entire presidential chapter found in JR’s 1978 Constitution.
Seven months after the 19th Amendment had been enacted, the architect of the Yahapalana movement which had brought Sirisena to power with the battle cry to abolish the executive presidency, the Venerable Sobitha Thera passed away at a time when the nation needed his moral voice most. But moments before the mortal remains of the great monk was consigned to the flames, Sirisena gave voice to the monk’s stilled lips and echoed the monk’s enduring dream to rid Lanka of the throne that gives mortal man an excess of power, far too much for his own good and that of the nation.
He opened the monk’s coffined hopes when he swore to the nation his renewed commitment to do everything possible under his command to abolish the Executive Presidency. He reconfirmed his pledge to create a just society, good governance, fully restore the rule of law and strengthen democratic institutions the Ven. Thera wished to establish through his campaigns.
He said: “The Ven. Thera being a Buddhist monk was completely a different character, who took a different path to create a just and decent society. It was a diversion of the commonly accepted path for Bhikkhus. But his struggle itself took the better of his life and made the Thera sick and weak which created shock and sorrow among all of us. The greatest honour we can give Sobitha Thera is by following in the path he showed us and endeavoring to achieve a just society and good governance.”
To a very great extent the President has nobly trod the path the monk Sobitha had shown him to achieve a just society. But the question on the people’s lips today is why the slip? Why the president suddenly chose, for no apparent reason, to make a sudden diversion and take the low road? Was he badly advised?
In his funeral oration before Sobitha Thera’s mortal remains, President Sirisena also said the entire nation was sad when they learnt the Thera fell ill. He added the Thera passed away proving the supreme law that nothing is permanent as preached by the Buddha.
Undoubtedly the same holds true to promises politicians make.
The question on the public lip is why a man who had consistently demanded less of the presidential gruel should suddenly ask for more? Why, at this momentous juncture, has he played his trump card, the one card that distinguishes him from his predecessors and places him on a pedestal of respect and honour? The question is, has he wasted his trump?
Today the Chief Justice is expected to hand over the Supreme Court opinion as to whether President Sirisena can serve as President till January 8th 2020 or January 9th 2021. But does their legal opinion really matter when it comes to prolonging the life span of Sirisena’s presidency? Make or break, what’s another year?
Already the president is showing doubts about his decision to refer to the Supreme Court as to whether he can remain president for an extra year. His clarifying statement issued on Thursday stating that he only sought Supreme Court opinion to clear the divergent air as to whether his term ends in 2020 or 2021, seems out of place when it was considered by all -- aided by his own promptings that he had sacrificed one year of presidential power -- as settled in both law and in fact that the presidential election will be held in 2020. Though his statement said the President had sought the opinion of the Supreme Court as otherwise it could lead to confusion, there was no confusion at all in the public mind.
On Friday, the President told a public rally at Akuressa that no one needs to get worked up over him seeking a Supreme Court determination on the expiry of his tenure. He declared that “I would accept the Supreme Court determination whatever it might be on my term of office and was ready to leave the presidency even today.” Well if that’s his attitude, what indeed made him canvass the Supreme Court opinion as to his eligibility to stay on the throne for another year? As everyone knows full well, one can lead a horse to water but not even the Supreme Court can force it to drink.
Unless, of course, the president was going up Hulftsdorp Hill on a leisurely public relations stroll to demonstrate to the public that even if the Supreme Court declares his legal right to reign as president, he will stand true to his moral principles and call for presidential election in 2020. That this legal exercise was purely to get it on legal record the sacrifice he made in voluntarily forfeiting one year of presidential power.
But no matter the legal outcome, make or break, what’s another year? Today whether the President can hold office for one more year lies in the hands of the Supreme Court. But be it 2020 or 2021 when the next presidential election is held, Sirisena’s chances of holding office for a further five years lies somewhere else, in some other province whose determination is impossible to fathom before it’s expressed. It lies not in the hands of the five judges of the full bench Supreme Court but rests in the supreme sovereign hands of the people whose final decision and opinion when canvassed will be as inscrutable as are the ways of providence.
One final word on the matter. Elizabethan playwright Christopher Marlow’s Dr. Faustus entered into a pact with the devil Mephistopheles and bartered his soul for 24 years of power and knowledge of black magic with which he would enthrall his audience. But when the inevitable hour of death came to Dr. Faustus and he begged Mephistopheles to extend the moment of death not even Troy’s Helen whose face had launched a thousand ships and burnt the topless towers of Ilium could make him immortal with a kiss.
The epilogue says it all when the chorus comes to sing the dirge for Dr Faustus and bemoans his end, lamenting how a once great potential had been wasted and reduced to dust,
“Faustus is gone: regard his hellish fall Whose fiendful fortune may exhort the wise,
Only to wonder at unlawful things, Whose deepness doth entice such forward wits
To practise more than heavenly power permits.