Another pitfall on the road to Presidential election

The Supreme Court on July 8 dismissed a petition filed by a resident of Moratuwa, C.D.Lenawa on July 3 seeking a declaration that the president’s term of office is six years and an order to suspend the presidential election until the ruling on his petition is given.  
During the hearing of the petition which was very brief before it was dismissed Chief Justice Jayantha Jayasuriya pointed out to the petitioner that the Article on the President’s term in the Constitution very clearly and unambiguously states it is five years, which the petitioner accepted. 

Fear of defeat 

The Opposition’s view that the petition was orchestrated by the president or his party is not totally unfounded. UNP Chairman Vajira Abeywardena and its General Secretary Palitha Range Bandara have been suggesting since April last year to defer the Presidential election through a referendum or to elect Wickremesinghe uncontested claiming that only Wickremesinghe can salvage the country from the current economic crisis.  However, the real fact that prompted them to make such suggestions was the fear of defeat in the Presidential election in the face of their vote bank having shrunk drastically since 2020. 
Against the backdrop of Lenawa’s petition having been dismissed by the apex Court, the Cabinet had approved a proposal by the president on July 9 to amend Article 83 (C) of the Constitution which also deals with the terms of the President and the Parliament. The professed purpose of the proposed amendment is to alleviate the seeming ambiguity in the said Article over the terms of the President and the Parliament. 
Before the Cabinet gave the nod for the President’s proposal, UNP General Secretary Range Bandara told a gathering in Medawachchiya on July 5 that as per the 19th Amendment, the President’s tenure is stated as 5 years in one context and 6 years in another and the President wanted to rectify this discrepancy. He assured that the current term of the President would be intact even after the amendment was passed. 
It must be noted that the proposal has been approved by the Cabinet one week before the Election Commission (EC) is to be legally authorised to announce the next Presidential election. The Commission would be empowered to start the election process by announcing the nomination date on Wednesday, July 17. 
The date for the announcement of the Presidential election is decided by calculating a maximum of nine backwards from the earliest day the Commission is authorised to conduct the election.  Earlier, on May 9, the Chairman of the Commission R.M.A.L Ratnayake announced that the Presidential election will be held on a day between September 17 and October 16, this year. 
However, the Election Commission, though it is thus authorised to declare the election on July 17, would not do so, as the election is not supposed to be held on the earliest day the Commission is authorised to conduct it.  Ratnayake had told the Daily Mirror on July 9 that his Commission would announce the date for the nominations for the Presidential election, at the end of this month (July). Hence, the government would get around two weeks to present its Constitutional amendment in the Parliament, before this announcement. 

Election expenditure Bill 

On the other hand, the question remains whether the government is barred from presenting Bills dealing with the Presidential election after the announcement of that election. We can recall that the Election Expenditure Bill was passed in Parliament on January 19, last year – a fortnight after the announcement of local government elections. 
There is no doubt that the proposed Constitutional amendment is innocent, at least overtly. Article 30 (2) of the current Constitution clearly and unambiguously provides for the President to “hold office for a term of five years.” Similarly, Article 62 (2) clearly states “Every Parliament shall continue for five years from the date appointed for its first meeting and no longer.” Yet, Article 83 (C) creates confusion by stating that a Bill for the amendment of these two Articles, namely 30 (2) and 62 (2) “which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and approved by the People at a Referendum.”
It seems to be that Article 83 (C) clashes with the other two Articles quoted above. This is an oversight by the drafters of the 19th Amendment to the Constitution and those lawmakers who adopted it in Parliament on April 28, 2015. This is the basis for the petition by Lenawa thought that the passage of the 19th Amendment has been flawed. However, he prefers an ambiguous Article of the Constitution over a very clear Article to stay intact, to rectify the matter. 
The government, to bring uniformity among these three Articles is to replace the words “six years” in Article 83 (C) with the words “five years.” This overtly seems to be a simple and incontrovertible need, but it is not so, given the current political intricacy surrounding the Presidential election. This comes from a group that wants to put off the Presidential election, at a time when that election is near at hand.
However, the argument that the term of the President and the duration of Parliament is six years as per Article 83 (C) is not correct, despite it containing such an implication. It states that people’s consent has to be obtained through a referendum apart from the two-thirds majority backing in Parliament, if the term of the President and the duration of Parliament is to be extended “to over six years.” In other words, the implication is that the condition of the referendum is not a must if the extension is meant only up to six years from the current five years. 
The danger is in the practical side of the amendment of this Article. It has to go through the Apex Court’s perusal where the petitions for and against it will also be considered. With the argument that the President’s term is six years according to Article 83 (C), as Lenawa and Range Bandara observed, a petitioner, even the UNP for that matter might seek, as Lenawa did, an interim order to suspend the Presidential election.  

Notorious history

The UNP has a notorious history of postponing elections. It dodged the Supreme Court’s perusal of a set of provisions for the mixed electoral system for provincial councils in 2017 by presenting it in Parliament as an amendment to another unrelated Bill during the committee stage debate on the latter. The Provincial Councils Minister under the then Yahapalana Government presented a delimitation report in Parliament but only to be rejected with even the minister himself strangely and ridiculously voting against it. Thus, the provincial council elections were postponed indefinitely. 
Apparently at the insistence of the UNP, a petition was filed by a retired army officer in the Supreme Court against the conducting of local government elections after the Election Commission declared those elections in January last year. The Court, considering another petition on the same elections ordered the Secretary to the Finance Ministry on March 3 last year not to withhold funds allocated to those elections by the budget. The official later told the court he referred the order to his minister who was the executive President. The case is still pending mainly for want of funds for the polls.
It is against such a backdrop that the Cabinet has approved a Constitutional amendment on Tuesday.