A five member Supreme Court Bench yesterday (11) listened to views of various parties on the legality of President Maithreepala Sirisena serving a full six-year term, as empowered by the constitution.
The Attorney General appearing with Additional Solicitor General Murdu Fernando and Deputy Solicitor General Nerin Pulle submitted that the incumbent President Maithripala Sirisena has sought the opinion of the Supreme Court whether there is any impediment to him to continue his terms of office for 6 years as President as amended in the amended Article 31 of the 19th Amendment. AG stated that the Presidential election was held on 8th January 2015 and incumbent President Maithripala Sirisena was elected and assumed duty on 9th January 2015.
He stated the date on which he was elected is 9th January 2015 for the term of office for 6 years. He submitted that the incumbent President was elected by the people for the office to the term of 6 years. It is the sovereignty of the people, who exercise their franchise to elect him as President. The power emanated from the franchise of the people. The commencement of his office should be considered from the date on which he is elected. He further argued that it is the Constitutional structure where the incumbent President was elected. The 19th Amendment to the Constitution is operative after the incumbent President was elected for a term of 6 years by the people. He continued that therefore the issue is whether the Article 3 and 4 of the 19th Amendment made operative where the term of office has already commenced.
He said there cannot be retrospective effect unless it has been specified or implied in any provision and there is no applicable provision retrospectively in the amendment.
He said that according to Article 49(1)(a) and (b) stating that for the avoidance of doubt it is hereby declared that (a) the 7th Parliament in existence on the day preceding the date on which this Act comes into operation, shall, unless dissolved earlier, continue to function until April 21, 2016 and shall thereafter stand dissolved.
He said that Article 49(1)(b) states 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.
He maintained that the mandate of the people to be a term of office for 6 years on which he assumed duty. He contended that any change would affect and alienate the sovereignty of the people. Hence, incumbent President Maithreepala Sirisena can hold office for 6 years, he concluded.
Saliya Peiris PC appearing for the intervenient petitioner Ven. Ulapane Sumangala Thera and Faisz Musthapha PC appearing for the Intervenient Petitioner SLFP General Secretary Duminda Dissanayake made similar submissions.
On the other hand, Counsel Manohara de Silva PC appearing for the intervenient petitioner Prof. G.L.Peiris countered the contention of the Attorney General and maintained that under Article 30 (2) of the 19th Amendment to the Constitution, the President can hold office for a terms of five years. He said it is not a question of ‘prospectively’ or ‘retrospectively’ on the term of office of the incumbent President. He submitted that the incumbent President can hold office under the transitional provision 49 in the 19th Amendment subject to the provision of the Constitution as amended by this Act (19th Amendment to the constitution).
He said that section 49 (b), states that 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 (19th Amendment).He submitted that if the incumbent President is aggrieved by the reduction of his term of office, he should have come to the Supreme Court under Article 121(1) when the 19th Amendment Bill was presented to Parliament.
The Article reads: The jurisdiction of the Supreme Court to ordinarily determine any such question as aforesaid may be invoked by the President by a written reference addressed to the Chief Justice, or by any citizen by a petition in writing addressed to the Supreme Court. Such reference shall be made, or such petition shall be filed, within one week of the Bill being placed on the Order Paper of the Parliament and a copy thereof shall at the same time be delivered to the Speaker. In this paragraph “citizen” includes a body, whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens.
He brought to the cognizance of the Court that the President did not invoke the jurisdiction of the Supreme Court on the issue at that time when Bill was placed in the Parliament order paper.
He submitted that the 19th Amendment has now been enacted and no person can invoke the jurisdiction for a pronouncement on the Bill as under Article 124 which reads: otherwise provided in Articles 120, 121 and 122, no court or tribunal created and established for the administration of justice or other institution, person or body of persons shall in relation to any Bill, have power or jurisdiction to inquire into, or pronounce upon, the Constitutionality of such Bill or its due compliance with the legislative process, on any ground whatsoever.
He said if the President was aggrieved that his term of office is curtailed, he could have asked for a referendum.
He contended that a term of office can be reduced by a person holding office without affecting the sovereignty of the people but one cannot extend his/her term of office without going for a referendum before the people.
He said there is no question of law or fact or interpretation and it is not a matter of public interest and it is used for political benefit.
Ali Sabry PC, Uditha Egalahewa PC, Kalyananda Thiragama, Krishmal Warnasuriya, and Viran Corea also appearing for different Intervenient petitioners Prof. Tissa Vitharana, Wimal Weerawansa, Centre for Policy Alternatives, Dr. Gunadasa Amarasekera, Keerthi Tennekoon of CaFFE, made similar submissions.
The Supreme Court directed the Counsels to hand over their written submissions today (12) before 12 noon.
The Supreme Court Bench will determine whether the term of office of the incumbent President Maithreepala Sirisena can hold office for 6 years or 5 years and inform him before 14th January 2018.