In the beginning it was simple. Under the 1978 Constitution prior to amendment, the President was to hold office for a term of six years.

The poll for the election of the President had to be taken not less than one month and not more than two months before the expiration of the incumbent President’s term of office. It was also stipulated that the term of office of the President would begin on the fourth day of February next succeeding the date of his election.

It was a fixed term presidency along the lines of its American counterpart, except for the fact that the term of office was for six years rather than four, as in the USA.

There was a "transitional provision" allowing J. R. Jayewardene, who had led his party to a resounding general election victory in 1977, to assume the presidency in 1978 without facing another election, but that was a "one-off" provision not applicable to any future election. Article 106 of the Constitution declared that Jayewardene’s six year term commenced on February 4, 1978.

Unfortunately Jayewardene, having taken on this new office, proceeded to tinker with the very Constitution his government had put forward.

Apparently wishing to go for a presidential election before the general election which was due by 1983, he introduced the Third Amendment to the Constitution to enable the incumbent President to seek a fresh mandate any time after the expiry of four years of his first term of office.

This removed the level playing field that is guaranteed by a fixed term presidency (as in the USA) and gave the incumbent President a period of two years during which he could select the most favourable timing for the election.

The wording of Article 31, sub-article (3A)(d) which was introduced by the Third Amendment is significant and reads as follows:

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

By this provision further inequality was created by prescribing different criteria for the commencement of the new presidency, depending on whether the President was an incumbent seeking a second term or a new candidate. Such provisions are probably unparalleled anywhere in the world, but the Third Amendment was allowed to pass by the then Supreme Court without a referendum.

President Jayewardene accordingly took oaths for his second term on February 4, 1983.

As the aforesaid provisions of the Third Amendment only come into play in respect of an incumbent President’s second term, the issue did not surface again until President Chandrika Bandaranaike Kumaratunga ran for a second term in 1999.

Having commenced her first term on November 10, 1994, President Kumaratunga took advantage of the Third Amendment to call a presidential election on December 21, 1999, and was declared duly elected on December 22. It transpired that she took her oath of office twice. The first oath taking was reportedly done very soon after being elected, while she was still under treatment for injuries suffered in a bomb blast at her final campaign rally. She again took the oath (before the same Chief Justice Sarath N. Silva) on November 10, 2000, exactly six years after she had commenced her first term.

In 2005 Ven. Omalpe Sobhitha Thero, a Member of Parliament from the Jathika Hela Urumaya, filed a fundamental rights petition in the Supreme Court stating that a doubt had arisen as to when President Kumaratunga’s term of office would end; that the Commissioner of Elections had failed to make a pronouncement on this issue; and that the political work of his party was thereby hampered.

After a hearing at which the Attorney-General and lawyers representing a number of private parties made submissions, judgment was delivered on August 26, 2005. The five-member Bench comprised Chief Justice Sarath N. Silva and Justices Nihal Jayasinghe, N.K. Udalagama, N.E. Dissanayake and Gamini Amaratunga.

The Court was called upon to interpret Article 31(3A)(d) which has been quoted in full above.

In a lengthy judgment replete with political history, the Bench unanimously determined that President Kumaratunga’s second term began on December 22, 1999, and therefore would end six years from that date.

How this determination could be reconciled with the actual wording of Article 31(3A)(d)(i) was a matter of some debate, and the subject of a critical article by leading constitutional lawyer R.K.W. Goonesekere in the Bar Association Newsletter of November – December 2005.

If the second term of the incumbent President was to begin on the date that the election result was declared, such person would be in the same position as a candidate newly elected to the post, and there would have been no need for the separate sub-sections "(d)(i)" and "(d)(ii)" quoted above.

What had apparently caused the confusion were the last four words of clause (d)(i), namely the words "whichever date is earlier".

Without these words the clause would be quite clear. The incumbent president’s second term would commence on such date after the election as coincides with the date on which his or her first term commenced. For example, since President J. R. Jayewardene’s first term was deemed to have commenced on February 4, 1978 as per the Constitution, and he held the election for his second term in the latter part of 1982, his second term commenced on February 4, 1983, being the first date after the election corresponding to the date on which his first term commenced.

If one applies this formula to any hypothetical set of dates, it will be found that the time gap between the date of re-election and the date for the commencement of the second term could be anything from one day to 364 days, depending on how shrewdly the President chose the date of the election.

Thus it seemed that President Kumaratunga had made an advantageous choice by holding the election in December 1999, because the earliest date thereafter which coincided with the date on which her first term began was November 2000.

One issue that might have been expected to surface was the fact that she had taken her oath of office immediately after election. Could the taking of the oath for her second term have constituted a waiver of the unexpired period of her first term? Unfortunately we will not know the answer to that question, because the Court embarked upon a more startling line of reasoning.

Having dwelt at some length on the importance of purposive construction of legal provisions as against literal construction, the Court held that the two dates that are meant to be compared for the purposes of clause (3A)(d)(i) are the date of the election for the second term and the date corresponding to the date on which the first term commenced, "whichever date is earlier".

It was this same issue that surfaced following the recent re-election of President Mahinda Rajapaksa, and when a seven-member panel headed by the Chief Justice was appointed, it was clear that the prospect of having to overrule the earlier decision of the five-member panel was very much on their Lordships’ minds.

In what appears to be a unanimous finding, the Supreme Court has reverted to what is clearly the plain and literal meaning of clause (3A)(d)(i), even if it results in inequality between an incumbent President running for his second term and the other candidates.