19th Amendment of Sri Lanka Constitution vague on the incumbent President’s period in office?
The 19th Amendment of the Sri Lanka Constitution seems to be vague regarding the period President Maithripala Srisena can hold office - from when to how long? Will the Sri Lankan President seek the opinion regarding this matter in the Supreme Court, under ‘Consultative Jurisdiction of the Supreme Court,’ under Article 129 (1)
In the election held on 8 January 2015, he was elected to hold office for a period of six years . The issue before us is whether or not President Maithripala Sirisena is entitled for a term of six years, regardless of the 19 Amendment to the Constitution.
Only after President Maitgripala Srisena was elected as President on 8th January 2015, for a period of six years (Article 30 (2) Repealed), the Parliament adopted the 19 Amendment (3) (2) –“shall hold office for a term of five years,” in late April 2015.
Constitutional expert and National List MP Dr. Jayampathy Wickremaratne has been the key member of the 19 Amendment drafting team, reported to have emphasized that President Maithripala Sirisena’s six year term had been reduced to five and the President himself referred to him, ‘giving up one-year willingly’.
It was further reported that, “Dr. Wickremaratne had said that as transitional provision had made it clear that the 19th Amendment applied to the incumbent President, there couldn’t be any issue as regards the current term of office. He further pointed out the relevant section: "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."
Dr. Wickremaratne said that as transitional provision had made it clear that the 19th Amendment applied to the incumbent President, there couldn’t be any issue as regards the current term of office.
Unfortunately, version of Dr. Jayampathy Wickremaratne MP, that the incumbent President can hold office for a period of 'five years' is not conclusive and binding (emphasis is mine).
Even if anyone agreed with the argument of Dr. Jayampathy Wickremaratne, the issue here is whether the 19th Amendment rescinds the oath taken by incumbent President on 9th January to hold office for a period of six years.
Also the repealed Article 30 speaks of (4) The terms of office of the President shall commence on the 4th day of February next succeeding the date of his election:
Also Article 39 of the Constitution, “For the purpose of Article 38 (1) (d) the date of commencement of the term of office of the new President shall be the date of his election or the date of determination, as the case may be.”
Furthermore, either the 1978 Constitution or the 19th Amendment, any one of those Constitutional instruments do not speak of President ‘giving up one-year willingly,’ binding? Provisions in the constitution should have been made his ‘willingness’ binding - may be a lacuna.
If so, why the President who willingly gave up his, ‘one year term of office’ was not invited to take the office of the Presidency again according to the clause in the 19th Amendment, then it would have been clear on the issue of the commencement of the five year term of office? - the Constitution speaks of a President taking oath even twice.
Instead of splitting hairs, I feel the best course is for the President himself to refer this matter for a ‘Consultative Jurisdiction’ of the Supreme Court, under Article 129 (1). If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Supreme Court for consideration and the Court may , after such haring as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.
- Asian Tribune -