19A and disqualifying twice elected presidents: A failed endeavour?
One of the declared objectives of the Government in introducing the Bill for the 19th Amendment to the Constitution was to restore the provision that no person who had been twice elected to the office of President by the people shall be qualified thereafter to be elected to such office by the people. That provision in the 1978 Constitution had been repealed in 2010 by the 18th Amendment. Did Parliament achieve the objective of reviving that disqualification? It would appear that that endeavour failed. Why?
The 19th Amendment, by repealing and replacing Article 3 of the Constitution, abolished the existing office of President and replaced it with a new office of President.
The office of Executive President was established by Article 30 of the 1978 Constitution. It read:
30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of State, the Head of the Executive and of the Government, and the Commander- in- Chief of the Armed Forces.
(2) The President of the Republic shall be elected by the People and shall hold office for a term of six years.
In 2015, section 3 of the 19th Amendment provided as follows:
Article 30 of the Constitution is hereby repealed and the following substituted therefor:
30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of State, the Head of the Executive and of the Government, and the Commander- in- Chief of the Armed Forces.
(2) The President of the Republic shall be elected by the People and shall hold office for a term of five years.
The only difference between these two versions of Article 30 was in respect of the term of office: six years in the former, and five years in the latter. If that was the only amendment that Parliament intended to make, the normal way of doing so would have been for section 3 of the 19th Amendment to have provided as follows:
Article 30 of the Constitution is hereby amended by the substitution in paragraph (2), for the words “six years”, of the words “five years”.
Why, then, was the normal form of drafting not followed? Why was it necessary to repeal Article 30 and thereby abolish the existing office of President and then proceed to establish a new office of President? The answer lies in the remaining 48 sections of the 19th Amendment and in the 56 sections of the amending Bill.
The powers, functions and duties of the new office of President are significantly different that those of its predecessor.
It is significant that it was not only Article 30 that was repealed and replaced, but also Article 33 which specified the duties, powers and functions of the President; and Chapter VIII which provided for the appointment of the Executive: the Prime Minister and the Cabinet of Ministers.
In 1978, what the National State Assembly established, through the new Constitution, was the office of Executive President. That office was the fount of all power and patronage. Acting on his own initiative, the President made appointments to every important office of the State, from Prime Minister, Cabinet Ministers, and Deputy Ministers to Judges of the Supreme Court and the Court of Appeal; from the Attorney General and the Secretary- General of Parliament to the Auditor General and the Commissioner of Elections, the Public Service Commission, the Judicial Service Commission, and the Parliamentary Commissioner for Administration. The President could dissolve Parliament at any time after it had functioned for one year following a general election. While he held office, no proceedings could be instituted against the President in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.
Under the new Article 33, the President was intended to be “the symbol of national unity”. Inexplicably, the Supreme Court rejected that description as being unconstitutional, the reason being that in 1981 the then Cabinet of Ministers had “categorically stated that the National Flag is the symbol of the unity of our people”. The national flag is referred to in Article 6 of the Constitution and depicted in the Second Schedule, with no reference whatsoever to it being the symbol of national unity. This was, perhaps, the first occa- sion when the Supreme Court elevated a cabinet decision to the status of a constitutional provision.
Be that as it may, the new Article 33 also required the President, inter alia, “to respect and uphold the Constitution”, “to promote national reconciliation and reintegration”, and “to ensure the creation of proper conditions for the conduct of free and fair elections”: duties and functions which were not previously required.
The office of President established by the 19th Amendment is fundamentally different from its predecessor. The President now cannot appoint or remove Ministers and Deputy Ministers except on the advice of the Prime Minister. His power to remove the Prime Minister from office was expressly repealed. In making appointments to the high offices of the State, including Judges and the Attorney General, and to all the Independent Commissions including some that were newly constituted, he is required to act on the recommendation of the 10- member Constitutional Council to which he may on his own appoint only one member. The President’s power to dissolve Parliament may be exercised only on the request of two-thirds of its members, except during the last six months of its fiveyear term. He no longer enjoys immunity from judicial proceedings, and any person may now challenge his official acts or omissions in the Supreme Court. Indeed, the new duty imposed on him to ensure the creation of proper conditions for the conduct of free and fair elections suggests that he should not be actively involved in any polit- ical party contesting such elections. Despite the few residuary powers which he retains, such as appointing Ambassadors, Ministry Secretaries and Governors of Provinces, the office of President established under the 19th Amendment is now more in the nature of a constitutional Head of State.
That the two offices of President are different is also evident from the transitional provisions.
Following the establishment of the new office of President, it became necessary to provide for the continuance in office of the person elected in January 2015 to the previous, but now abolished, office of President. Accordingly, a transitional provision (Section 49) was inserted into the 19th Amendment. It stated 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.”
This transitional provision became necessary because the offices which Maithripala Sirisena and Ranil Wickremasinghe held since January 2015 had ceased to exist when Article 30 and Chapter VIII of the Constitution were repealed. The offices of President and Prime Minister established by the 19th Amendment were new offices, and it was therefore necessary to provide for these two persons to continue to function in these new offices, but subject to the reallocation of powers introduced by the 19th Amendment. The significance of this reallocation is evident from an unprecedented provision, section 51, in the amending Bill. It stated that, notwithstanding anything to the contrary in the Constitution, President Sirisena may also serve as the Minister of Defence, Mahawe l i D eve l o p m e n t and Environment. No person had previously been appointed a Minister by an Act of Parliament.
The disqualification is only applicable to the office of President established by the 19th Amendment since it was not applied retrospectively to those who had been twice elected to the office of President that was abolished by the 19th Amendment.
To revert to the question raised at the outset, a new Article was indeed included by the 19th Amendment, immediately below that which created the new office of President. That Article 31(2) reads:
“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”.
To whom does the disqualification in Article 31(2) apply? On the one hand, it undoubtedly applies to anyone who has been twice elected to the office of President established by the new Article 30 introduced by the 19th Amendment. On the other hand, this is an entirely new prohibition on a citizen’s right to be nominated to stand for election and to be elected. Immediately prior to the 19th Amendment, the Constitution did not impose such a disqualification. Therefore, a person who had previously been twice elected to the office of Executive President established by the repealed Article 30 was not subject to such a disqualification and did not suffer such a legal disability.
Whether advisedly or inadvertently, Parliament did not provide in the 19th Amendment for this new constitutional disqualification to retrospectively apply to citizens who had previously been twice elected to the former (since abolished) office of President. A law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention. Accordingly, it would appear that the two surviving former Presidents, Chandrika Kumaratunga and Mahinda Rajapaksa, not having been made subject to this disqualification, are eligible to seek election to this new, essentially non-executive, primarily symbolic and ceremonial, office of President whenever an election is held.
(The writer was a law professor and former secretary to the Ministry of Justice)
Why, then, was the normal form of drafting not followed? Why was it necessary to repeal Article 30 and thereby abolish the existing office of President and then proceed to establish a new office of President? The answer lies in the remaining 48 sections of the 19th Amendment and in the 56 sections of the amending Bill.