do we need an alternative approach to the third term question beyond text and intention

8/10/2019 Do We Need an Alternative Approach to the Third Term Question Beyond Text and Intention

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DO WE NEED AN ALTERNATIVE

APPROACH TO THE THIRD TERM

QUESTION BEYOND TEXT AND

INTENTION?

by Asanga Welikala

- on 10/21/2014

Amidst strong indications following theUva provincial election result that a panicked regime is planning an earlypresidential election there has been a vigorous debate in the media aboutthe conse!uences of the "ighteenth Amendment to the #onstitution whichabolished the presidential two-term limit and removed other proceduralrestraints on presidential power$ %here was of course no comparableopposition or even public interest in the issue when that amendment wasenacted in 2010$ &n the triumphalist afterglow of war victory this blatantattempt at entrenching presidential authoritarianism and dynasticconsolidation was ignored by most and even welcomed by some$ 'nly anin(nitesimal minority in the parliamentary opposition the media and civilsociety opposed this pernicious measure then only to be roundlycondemned as traitors for their trouble$ )till better late than never and itappears that the )outhern electorate is at last waking up after the e*cessesof the long post-war party albeit with a nasty hangover in the form of aconstitutional and democratic crisis$
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&n at least one sense they seem like legal arguments constructed insupport of preconceived political positions with regard to the incumbentpresident7s political future and they do not seem to be at least directlyconcerned with the purposes and values that constitute or ought toconstitute the constitutional foundations of the )ri ankan state$8etermining the legality or constitutionality of any governmental action is

obviously important and to that e*tent the debate between the )ilva andendis views is illuminating$ 3ut in a more broadly political sense of theconstitution we (nd ourselves today in a di@cult and disappointingsituation with e*tremely grave challenges for the future of democracy andconstitutionalism$ %his seems to re!uire an alternative way of approachingthis matter which places the imperative goal of re-democratising the stateat its heart$

The Issue

%he 19:; #onstitution in its original form re?ected two key principles ofdemocratic presidentialism in providing temporal limitations on e*ecutivepower$ %hese were the principle of the (*ed term and the principle of theterm limit$ %he (rst established a (*ed number of years that constitutes asingle presidential term of o@ce in our case a relatively long si* yearsB$

%he second established the number of such terms that one person could beelected to hold presidential o@ce in our case two termsB$ &n addition tosubstantive limitations on e*ecutive power such as a strong separation ofpowers there is a logical rationale for such temporal limitations in apresidential democracy$ Unlike in a parliamentary system in which the life of

the government is usually dependent upon the retention of the con(denceof parliament through responsibility and answerability to it under apresidential system the conferral of relatively autonomous power on thedirectly elected e*ecutive must be balanced by other limitations$ Cithoutthese key limitations a presidential system becomes an elected monarchyrather than a republican democracy$Chile therefore the 19:; #onstitution began by conforming to thesere!uirements very soon the temptations of party advantage and e*ecutiveconvenience overtook the commitment to constitutional principle$ %hus in19;2 the %hird Amendment was passed so as to allow the incumbent to

seek early re-election after the passage of four years of his (rst term$ At thetime this did not apply to a second term because the two-term limitationwas still in place but after the "ighteenth Amendment this is availableduring any term$ %his removal of the (*ed term principle was intended togive the incumbent the ma*imum advantage over his opponents byallowing him to choose the most bene(cial timing for his re-election$ %hedreadfully convoluted wording of Article >1>AB introduced by thisamendment demonstrates the e*tent to which it was tailored to bene(t a


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sitting president as well as the speci(c circumstances of .resident,ayewardene in 19;2$

%he absence of coherence and principle in this provision was the sub+ect ofanother intervention previously by #hief ,ustice )ilva in Ven. OmalpeSobhithas Casein 200D$ &n that decision he cut short .resident

Eumaratunga7s second and last term by a year by giving what issemantically a rather elastic interpretation to that provision$ )omeintervening petitioners in that case suggested that while the provision wascomplicated and repugnant to democratic principle it was capable of aclear construction$ &t was argued that where it was possible the clearmeaning of the te*t should be upheld as the least ob+ectionable optionrather than a strained interpretation to serve immediate ob+ectives withunforeseeable conse!uences$ #hief ,ustice )ilva who in relation to thepresent third term issue is advocating a highly te*tualist interpretationstrongly re+ected such an approach in 200D preferring instead an activist

some might say adventurist interpretation$ %he more restrainedinterpretation would also have meant that .resident Eumaratunga couldhold o@ce until 200F which was an outcome that seemed at the time that#hief ,ustice )ilva was determined to avoid$

%he surviving principle of the two-term limit was then done away with bythe "ighteenth Amendment in )eptember 2010 moving )ri anka furthertowards hyper-presidentialism$ &n the preceding presidential andparliamentary elections of ,anuary and April 2010 there had beenabsolutely no indication given to the electorate about the impending

changes and in any case .resident a+apaksa7s two-thirds ma+ority thatensured the passage of the "ighteenth Amendment was secured not byelection but by post-election crossovers of .s elected from oppositionparties in many cases facilitated by allegedly corrupt methods$3oth amendments were enacted at the behest of presidents controllinglarge parliamentary ma+orities with little or no legislative and publicdeliberation as to the rationales or the conse!uences of the measures$#ertain .s and even constituent parties of the ruling coalition are nowregretting their support for the "ighteenth Amendment$ %hese e*pressionsof contrition for their sycophantic conduct are sadly inade!uate for it did

not take much intelligence or prescience to predict what would ensue fromthe face of the 3ill in 2010$ 'n both occasions moreover the )upreme#ourt timidly ac!uiesced with the government in power abandoning its roleas a check on the e*ecutive$ At least in 2010 the court had the bene(t ofe*tensive representations from interveners such as 8r ,ayampathyCickramaratne and ohan "drisinha as to the possible eGects of theamendment bill and why these would be so far-reaching as to re!uire theconsent of the people at a referendum$ #hief ,ustice )hirani 3andaranayake


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of course subse!uently paid a very high personal price for her capitulationon that occasion$

%he speci(c issue about whether or not .resident a+apaksa is legallyentitled to contest an election for a third term arises within this conte*t andhistory of undemocratic constitutional manipulation and +udicial failure$ &t is

important to stress that there is no disagreement that the "ighteenthAmendment has validly repealed the two-term limitH any person elected inthe future to the presidential o@ce would have no term limits whatsoever$ather it is about whether the incumbent who was twice elected under theprevious framework that contained the two-term limit can bene(t from thesubse!uent abolition of that limit$ oreover if it is accepted that theincumbent is bound by the pre-"ighteenth Amendment rules then it followsthat he is also not entitled to call an early presidential election as is nowproposed because he en+oyed that right only during his (rst term$

The Silva View

%he gist of the constitutional interpretation advanced by the former #hief,ustice is that the abolition of the term limit eGected by the repeal of Article>12B by the "ighteenth Amendment does not apply to the incumbentpresident$ .resident a+apaksa had already been twice elected by the timethe "ighteenth Amendment was enacted$ %he rules that apply to himtherefore are those that prevailed before in terms of Article >12B thatI Joperson who has been twice elected to the o@ce of .resident by the .eopleshall be !uali(ed thereafter to be elected such o@ce by the .eople$K %hat

rule applied the moment he was elected for the second time in ,anuary2010 thereby dis!ualifying him from any future candidacy for the o@ce ofpresident$ &f .arliament intended the abolition to apply to him then itshould have done so e*pressly in the "ighteenth Amendment Act$ &n theabsence of such an e*press provision the rule of interpretation set out in)ection F of the &nterpretation 'rdinance applies to deny the retroactiveapplication of the abolition$ )ection F>B providesI

Chenever any written law repeals in whole or part a former written lawsuch repeal shall not in the absence of any e*press provision to that eGect

aGect or be deemed to have aGected aB the past operation of or anythingduly done or suGered under the repealed written lawH L cB any actionproceeding or thing pending or incompleted when the repealing written lawcomes into operation but every action proceeding or thing may be carriedon and completed as if there had been no such repeal$K

Chen this rule of interpretation is applied to Article >12B and its repeal bythe "ighteenth Amendment without an e*press provision to make the


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repeal applicable to the incumbent president the dis!uali(cation thatprevailed prior to the repeal continues to apply to the incumbent$ %he keypoint here is the re!uirement of an e*press provisionI for the abolition ofthe term limit to be applicable to the incumbent the "ighteenthAmendment should e*pressly have provided for it$ &n its absence theprevious legal provision and its eGects apply to the incumbent$

%his then is a highly te*tualist position in the sense that it insists that thecorrect legal answer to this !uestion can be derived solely from the te*t ofthe constitution i$e$ the te*t of the pre-repeal Article >12B and the te*t ofthe "ighteenth Amendment construed in the light of the general principleof interpretation laid down in )ection F of the &nterpretation 'rdinance$

The Mendis View

#hinthaka endis re+ects this interpretation on a number of grounds$


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the "ighteenth Amendment$ Chile he re+ects the applicability of the&nterpretation 'rdinance to the interpretation of the constitution although

+udicial authority on this point is against him and both atnapala and


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&t can thus be seen that both the )ilva and endis views have theirstrengths and weaknesses but with the addition of the views of atnapalaand


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beginning the constitutional rules engaged in this dispute derive from twoconstitutional amendments that have been enacted for the e*ecutiveconvenience and partisan advantage of two presidents with a provenauthoritarian bent$ &t is easy in these circumstances to either disengagefrom the constitutional conversation or to use the rules purelyinstrumentally of which )arath )ilva7s rather clever argument is a good

e*ample$ )ome will no doubt feel satisfaction in the discom(ture )ilva7sintervention will cause .resident a+apaksa although given his insouciantattitude to constitutional propriety this is likely to be relatively minor andshort-lived$ &n my view however the thoroughly unsatisfactory nature ofthese rules demand not disengagement or short-term point-scoring but amuch deeper commitment on our part to interpreting them with a clearview to diminishing their more corrosive eGects and through thereinterpretation process to augment whatever democratic potential of thebroader constitution of which they are a part until such time as they and itcan be formally replaced with something better$ And this is matter for a

social constitutional conversationI in a republic ideally constitutionaldiscourse ought to be a democratic activity and not the e*clusive preserveof the courts or elites$

&f all of this is true then it begs the !uestion of how we can transcend thelimits of the positivist arguments$ %he sub+ective view of the legislator ishardly an appropriate standard to use in these circumstances unless whatwe wish for the government of the country is a presidential monarchy withunlimited terms weak or no checks and balances perpetual immunity ageneral breakdown of constitutional government and for the general will to

be supplanted by an individual will$ )uch a regime will be marked byimpunity corruption and waste and a growing and comprehensive erosionof democracy$ As these dangers are becoming more and more visible in )rianka it is apparent that the electorate7s credulity and goodwill towardsthe regime is wearing thin$ Chen the public7s withdrawal of consentbecomes more and more di@cult for the regime to countenance it will seekrefuge in more and more authoritarianism including through the e*pansionof militarisation$

Avoiding this disastrous downward spiral is in the overwhelming public

interest$ Ce therefore need more ob+ective standards against which toconstrue speci(c constitutional rules$ )uch ob+ective standards areavailable within the norms embedded within the constitution itself andthrough the universal character of those norms to broader comparativeand philosophical resources that we can bring to bear on constitutionalinterpretation$ %he key principles here are set out in the preamble to the19:; #onstitution as Nthe immutable republican principles7 of representativedemocracy freedom e!uality +ustice fundamental human rights and the


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independence of the +udiciary$ %he preamble also characterises thesevalues as Nthe intangible heritage that guarantees the dignity and well-being of succeeding generations of the people of )ri anka and of all thepeople of the world$7 %his places our country (rmly within the community ofdemocratic states$ %he standards and principles of government adhered toby this category of countries in the world are therefore directly applicable to

the way in which we interpret our constitution$ &t is both necessary andappropriate that these values and norms are set out in the preamble inopen-te*tured language$ %hey are resplendent generalisations derived fromNthe intangible heritage7 common to humanity$ And it is only by reference tothe normative foundations set out by these values that we can articulatethe concrete meaning of speci(c rules$ Chen applied to undesirable rulessuch as those established by the "ighteenth Amendment or the %hirdAmendment this approach enables us to restrict the harmful eGects ofthose rules$

As & have suggested before if this approach was adopted by the )upreme#ourt in the pre-enactment proceedings before the "ighteenth Amendmentthen it is certain to have re!uired a referendum$ Chether in the politicalconte*t of 2010 this would have been won by the regime is not the pointHthe point is that at least notionally the people would have had to considerthe implications of the far-reaching changes and then provided or withheldtheir consent$ ather than rise to the occasion the )upreme #ourtdelivered itself of a shallow and pusillanimous determination that basicallygave the green light to the regime to do as it pleased$ &n this conte*tbefore applying these principles it is necessary to recall the following

relevant facts regarding the substance and the process used for theenactment of the "ighteenth Amendment$

%he Mahinda Chinthana r ahinda a+apaksa7s manifesto for the 200D

presidential election at which he was (rst elected to the presidency stated

the following at p$9:I JCith the consensus of all & e*pect to present a

#onstitution that will propose the abolition of the "*ecutive .residency L &n

the interim & propose to present a #onstitutional amendment through which

the "*ecutive .resident will be made answerable to .arliament LK %he Mahinda Chinthana Idiri Dekma .resident a+apaksa7s manifesto for

the 2010 presidential election at which he secured re-election stated the

following at p$DFI J& was particularly careful when e*ercising the powers of

the "*ecutive .residency$ &n the past the "*ecutive .residency was used to

postpone elections to topple elected governments to disrupt the +udiciary

to ban political parties to suppress demonstrations and lead the country


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towards a violent culture to sell state institutions at under-valued prices to

defend criminals and to grant concessions to unscrupulous businessmen$

Agreements that betrayed the country were entered into using the powers

of the "*ecutive .residency$ & used such powers to unite the country$ An

open discussion on the "*ecutive .residency will be held with all parties$%he "*ecutive .residency will be converted into a %rusteeship which

honours the mandate given to .arliament by being accountable to

parliament establishes e!uality before the law is accountable to the

+udiciary and enacts laws that are accountable to the +udiciary and is not in

con?ict with the +udiciary$K

%hus .resident a+apaksa promised in his (rst election to abolish the

e*ecutive presidency whereas in the second there is no such promise but a

largely meaningless mass of words about consultations for reform$ &naddition to the broken promise of abolition his account of how presidential

powers have been abused in the past would accurately describe how he

and his government have e*ercised e*ecutive power since 200D$

&n the presidential election of ,anuary and the parliamentary election of

April 2010 which preceded the "ighteenth Amendment in )eptember there

was no indication whatsoever that there would be a constitutional

amendment to abolish the presidential two-term limit or to dilute the)eventeenth Amendment and re-politicise independent institutions and

services$

&n the weeks preceding the introduction of the "ighteenth Amendment 3ill

+ust like how in the present speculation is taking place about an early

presidential election in 201D there were rumours about impending

constitutional change$ &n the absence of clear and transparent proposals by

the government or any attempt to set out a proper process confusion

reigned in public discourse fed by con+ecture rumours and gossip$ edia

speculation about the proposed changes ranged from the removal of the

two-term limit to the abolition of the e*ecutive presidency and its

replacement with an Ne*ecutive prime minister7 no one knew what this

meantB and the introduction of a second chamber$


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According to ohan "drisinha and Aruni ,ayakody here is how the process

of its enactment panned outI%he .resident placed the 1;th Amendment before the #abinet ononday >0 August$ )ince the #abinet declared it as urgent in the

national interest the Amendment bill was automatically referred tothe )upreme #ourt the following day on %uesday >1 August$ %hosewho were fortunate enough to have had access to a copy of theAmendment intervened before the )upreme #ourt$ At the)upreme #ourt hearing it became apparent during the Attorney6eneral7s submissions that the version of the bill in possession ofthe intervening petitioners was diGerent to the version relied on bythe Attorney 6eneral Pohan .eiris .$#$ the current #hief ,usticeQ$Chen the intervenient petitioners ob+ected in court the Attorney6eneral turned to them and stated J%his is what happens when

you have documents you are not supposed to have$K


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mentioned that strictly legal interpretation must be complemented andreinforced by a full normative defence of that interpretational preference ifwe are to make this into an e*ercise in re-democratising the state ratherthan a brief legal skirmish that will soon be forgotten$ %hat is theconstitutional conversation that it is the duty of the opposition parties theindependent media and civil society to start and sustain$ &f the electorate is

not engaged in this way then of course we will go back to business as usualin which charismatic populists rule the roost and democratic politics issolely about base instincts and emotions and not reason and ideals$

do we need an alternative approach to the third term question beyond text and intention

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