I was deeply saddened to read today an article by Nihal Jayawickrama, former Permanent Secretary to the Ministry of Justice, in which he declares that, disregarding time-specific provisions ‘as being limited in application to that first election held in 1982, the remaining provisions lead inexorably to only one conclusion, namely, that the first term of an incumbent President who seeks re-election after completing four years in office ends at the conclusion of that poll and the declaration of the result. That is also the moment in time when his second term commences’.

Mr Jayawickrama is therefore throwing his not inconsiderable weight behind efforts to bypass specific constitutional provisions and limit the term of Mahinda Rajapakse’s Presidency. I would have termed this casuistry, were it not conceivable that Mr Jayawickrama too, like the other eminent lawyers who failed to ensure the obvious interpretation of the Constitution by the Supreme Court, has been misled by some confusing language in the relevant provision.

To quote that in full, namely Clause 30 (3a) (d), introduced by the 3rd amendment to the Constitution in 1982, which allowed an incumbent President to call for an early election to appeal ‘to the People for a mandate to hold office, by election, for a further term’ -

The person declared elected as President at an election held under this paragraph shall, if such person

(i) is the President in office, hold office for a term of six years commencing on such date in the year in which that election is held (being a date after such election) or in the succeeding year, as corresponds to the date on which his first term of office commenced, whichever date is earlier; or

(ii) is not the President in office, hold office for a term of six years commencing on the date on which the result of such election is declared.

This makes crystal clear that two different commencement dates are envisaged depending on whether the incumbent or a challenger won. The challenger commences office on the date on which the election result is declared. The incumbent commences office of a date that ‘corresponds to the date on which his first term of office commenced’, i.e. November 18th in the case of President Rajapaksa, just as it was February 4th in the case of President Jayewardene, a date that was never challenged.

Why then were things different in the case of President Kumaratunga? Her first mistake was to take oaths shortly after she was re-elected in 1999, in December, i.e. well before her second term was due constitutionally to begin. That term should have begun in November 2000, and this fact was made clear to her in an article by Rohan Edrisinha shortly after she had taken oaths, but typically she pretended not to take this seriously. Typically too she claimed later that she had recognized the problem, and had therefore taken oaths again in November 2000, but she had done this in secret.

President Kumaratunga’s second mistake was not hers but that of her lawyers. They failed to explain in court, as explicitly stated in the judgment on the matter delivered by then Chief Justice Sarath Silva, the only phrase that could suggest ambiguity, namely ‘whichever date is earlier’, which figures at the end of Clause 30 (3a) (d) (i).

In fact the phrase is not ambiguous at all, but I realized that it had caused difficulties to lawyers, for instance the first UNP leaning lawyer with whom I discussed the issue, shortly after Ranil Wickremesinghe had begun a campaign of marches to demand that President Kumaratunga vacate office in 2005, i.e. six years after the election and her taking of oaths.

The lawyer granted that the fact that there were two separate dates envisaged was not in question, but said that the phrase ‘whichever date is earlier’ was ambiguous. I explained it to his satisfaction, and also discussed the issue with my father, who also accepted my explanation. It never occurred to me until too late that other lawyers would also have been confused, though I now realize that legal minds might have treated the matter as a complex one, whereas a thorough knowledge of the English language makes the picture clear.

In 2005 I was informed that President Kumaratunga believed her time was up because the Chief Justice was determined to rule against her. I wondered why she thought her lawyers did not stand on what seemed indisputable, and finally I rang up one of her junior lawyers and asked how they planned to explain the potentially ambiguous phrase. It turned out that he had no idea, though he agreed when I explained it. However he said that it was then too late to make the position clear to H L de Silva.

Sure enough, when the judgment emerged, it turned out that the Chief Justice stressed the fact that no one had explained the phrase, and then based the rest of his judgment on the claim that this made clear that there was ambiguity. Where there was ambiguity, he indicated, it was incumbent on the Courts to rule in a manner that caused least disruption to the country, and therefore he declared that President Kumaratunga’s term should end in 2005.

I wrote about this judgment at the time, pointing out that his logic was brilliant, but was based not on a real ambiguity, but on the failure of lawyers to explain what seemed possibly ambiguous. In that article I noted the obvious interpretation of the phrase.

It is intended to distinguish between the relevant date in the same year and in the ‘succeeding year’, both of which are specifically mentioned in the Clause. Thus, if that phrase were not there, President Rajapaksa could decide whether his second term commenced on November 18th 2010 or on November 18th 2011. A date that ‘corresponds to the date on which his first term of office commenced….. commencing on such date in the year in which that election is held (being a date after such election)’ is November 18th 2010. A date that ‘corresponds to the date on which his first term of office commenced….. in the succeeding year’ is November 18th 2011. Both possible dates are obviously those that correspond to the date ‘on which his first term of office commenced’. If the phrase ‘whichever date is earlier’ had been omitted, it would have suggested there was a choice. One might have thought it was obvious that the earlier date was intended, but it could have been argued that nothing was specified. Thus the phrase, which seems unnecessary, and therefore was used to suggest ambiguity, was in fact necessary to deal with a possible counter-intuitive argument.

In President Kumaratunga’s case, in fact, no choice was available since the date on which the second election results were announced was after the date on which her first term of office commenced. But her failure to read the Constitution carefully in 1999, what is claimed as a secret taking of oaths in 2000, and above all the failure of her lawyers to point out the one confusing phrase in the relevant Clause, contributed to her losing out.

It is possible that Nihal Jayawickrama is uncertain then of the obvious meaning of these provisions. I would like to think so, but there are elements in his article that suggest he is being disingenuous. Instead of quoting the relevant provisions in full, he only mentions 31(3A)(d)(i) in terms of what the election President Jayewardene called in 1982, and then argues that, since (d)(ii) says the challenger commences office on the date on which the result is declared, the same must serve for the incumbent since ‘The day on which the first term ends cannot be determined by who had won or lost in that poll, but by a more certain event, namely the close of the poll and the declaration of the result’.

Thus he seems to suggest that 31(3A)(d)(i) was specific to President Jayewardene, and that everyone else must forget what that Clause says. He engages in reference therefore to what the Amendment says about what happens if the incumbent President dies after having called for an early election, and totally ignores what it says about what happens if the President lives and wins the election, which is what has happened now.