011-SLLR-SLLR-2008-V-2-OMALPE-SOBHOITA-THERO-v.-DAYANANDA-DISSANAYAKE-AND-ANOTHER.pdf
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Dayananda Dissanayake and another
OMALPE SOBHITA THERO
v
DAYANANDA DISSANAYAKE AND ANOTHER
SUPREME COURTSARATH N. SILVA, C.J.
JAYASINGHE, J.
UDALAGAMA, J.
DISSANAYAKE, J.
AMARATUNGA, J.
SC (FR) 278/2005AUGUST 22, 2005
Constitution Article 4 (b), Article 30(2) – Article 31(3A)(d) i – Article 62(2) 83 -Article 92, Articles 93, 94-Article 125(1), Article 126(2) – Article 160, Articles161(a), 163 – 1982 Amendment to the Constitution – 1972 Constitution -Amendments – Presidential Elections Act – Commencement, of the secondterm of office of the incumbent – President if elected – Constitutionalinterpretation?
The petitioner filed an application under Article 126(2) alleging an infringementor an imminent infringement of Article 12(1)- the impugned conduct being thefailure on the part of the 1st respondent to make a pronouncement that thenext Presidential election will be held on the basis that the term of office of thePresident will expire on 22.12.2005 and not in November 2006.
Held:
The Dominion Constitution 1948 and the first Republican Constitution 1972were based on the Westminster model of Parliament and Cabinetgoverned with the Prime Minister elected to Parliament from one of the 168Electorals being the Head of the Cabinet of Ministers. The Governor-General – later the President whose functions were more ceremonial wasnominated by the Prime Minister and acted on the advice of the PrimeMinister. The Parliament elected under the first Republican Constitution on21.7.1977 made the second amendment of altering the term ofGovernment to that of an executive Presidency.
Section 5 was amended to provide that the executive power of the peopleshall be exercised by the people and Section 20 was amended to providethat the President shall be the Head of Executive, Head of the Governmentand the Commander in Chief of the armed forces.
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A new Section – Section 26 was introduced to provide that the Presidentshall be elected by the people and shall hold office for a term of six yearsfrom the date of assumption of office. Section 28B provides that the personholding the office of Prime Minister is deemed to be the ExecutivePresident, and shall hold office for a period of six years from the date ofassumption of office — 4.2.1978.
The same Parliament adopted and enacted the presently operative secondRepublican Constitution certified on 31.8.1978 and in Article 160 it is seenthat it takes over mutatis mutandis the threefold fiction contained inSection 28B.
Continuity in office under the new Constitution without recourse to theexercise of the franchise was assured to the Executive President upto4.2.1984.
On 27.8.1982, the Third Amendment was made to the Constitution toenable the incumbent President to seek a further mandate after completingfour years in office. This was immediately amended and on 17.9.1982nominations were received for the Presidential Election and at the electionheld on 20.10.1982, the incumbent President was declared elected.
(i) Under Article 30 (4) – election held in the ordinary course upon a full
term of office of 6 years, then the term of office of the person electedwill commence on the expiration of the term of office of the Presidentin office.
In terms of proviso (b), if the incumbent President is not a candidate orfails to win, his term of office is deemed to expire on the date of theelection and consequently the successful candidate’s term willcommence on the date of election.
(ii) Under Article 31 3 (A) d (1) – election is held as in (ii) above and thePresident in office is declared elected, the date of commencement ofthe second term of office of the person declared elected as Presidentat an election if such person is the President in office hold office for aterm of six years commencing on such date – in the year in which thatelection is held (being a date of such election) or in the succeedingyear, as corresponds to the date on which his first term of officecommenced, which ever date is earlier.
The authority for the exercise of executive power stems from the electionsby the people. The franchise which terms part of the sovereignty of thepeople – Article 3 – is exercised inter alia at the election of the Presidentas provided in Article 4(e). Article 30(2) directly links the terms of office ofsix years to the election by the people, these are entrenched provisions ofthe Constitution. Commencement of the term of office of the Presidentsignifies the commencement of the executive power of the people on theauthority of the mandate received at the election. The mandate is based on
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the exercise of the franchise at the election of the President in terms ofArticle 3 read with Article 4(e). Viewed from this presumption it is in accordwith the basic premise of the Constitution that the term of office of thePresident should commence on the date of election.
Provisions of Article 31 3 (A) (d) i – should be interpreted on the basis thatthe President will hold office for a period of six years commencing on thedate on which the result of the election is declared — being in the presentcase 22nd December 1999 – as the first term of office of the PresidentCommenced upon election on 10.11.1994 and as early elections werecalled in terms of Article 31(3A)(a) 1 and declared elected on 22.12.1999.
Courts have taken the view that the judicial act of interpretation andappraisal is imbued with creativity and realism and since interpretationalways implied a degree of discretion and choice, the Court would adoptparticularly in areas such as constitutional adjudication dealing with socialrights – Courts are held as finishers, refiners and polishers of legislatureswhich gives them a state requiring varying degrees of further processing.
APPLICATION under Article 126(2).
Cases referred to:
Bandaranayake v Weeraratne and others 1981 -1 Sri LR 10 at 14.
Johnson v Moreton 1978 – 3 All ER 37.
Vacher and Sons Ltd. v London Society of Compositors – 1913 Al 107 at
121.
Gladstone v Bower.
Brandleng v Barrington 1827 – 6B & C 467 at 575.
River Wear Comr. v Adamson 1877 2 App. Cas 742 at 763.
Attorney-General v H.R.H. Prince Ernest Augustus of Hanover 1975 – 1 AllER 49 at 54.
Stock v Frank Jones (Tipton Ltd.) 1978 1 All ER 948 at 953.
R. v Committee of Lloyds ex.p. Moran 1983 The Times 24 Journal
ICI Ltd. v Shatwell 1961 Al 656 at 675.
Bhatia International v Bulk TradingSA-AIR 2000 Sc 11 at 1437 and 1438.
Manohara de Silva with David Weeraratne, Udaya Prabath Gammanpila,
Govinda Jayasinghe, K.H.C. Kahandawela and N. Perusinghe for petitioner.
Elmore Perera with Shariff A. Nawaz tor 1st respondent.
K.C. Kamalasabeysan PC Attorney-General with Jayantha Jayasuriya, DSG,
Nerin Pulle SC for 2nd respondent.
H.L.de Silva, PC with Nigel Hatch PC, Chanaka de Silva and Gaston
Jayakody, M.A. Sumanthiran, Viran Corea, Aravinda Athurupana with Kamal
Nissanka for parties seeking intervention – as amicus curiae.
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August 26, 2005SARATH N. SILVA. C.J.
The Venerable Thera being a Member of Parliament and theGeneral-Secretary of a recognized political party founded onBuddhist principles having 9 members in Parliament, filed thisapplication in terms of Article 126(2) of the Constitution alleging aninfringement or an imminent infringement of his fundamental rightguaranteed by Article 12(1) of the Constitution. The impugnedconduct is the failure on the part of the 1st respondent, being theCommissioner of Elections to make a pronouncement that the nextPresidential Election will be held on the basis that the term of officeof the President will expire on 22.12.2005 as contended by thePetitioner and not in November 2006 as contended by theincumbent President (vide publications P8 and P9). The petitionersubmits that different statements have been made by spokesmenof the two main political parties as exemplified by the publicationP10 resulting in a pervasive uncertainty in relation to this importantmatter. Hence the petitioner wrote letter P11 to the 1st respondent,adverting to the controversy as to the operative date and theconsequential environment of uncertainty and doubt, that seriouslyimpede the petitioner and his party in taking important policydecisions and organizational measures as to the next PresidentialElection. The petitioner requested the 1st respondent being theappropriate statutory authority to make a clear pronouncement asto the operative date without delay. The alleged infringement is thefailure to make such pronouncement.
After the application was filed and prior to it being supported forleave to proceed, letter dated 2.8.2005 was received by thepetitioner which was tendered to Court. Counsel submitted that theletter merely refers to several provisions of the Constitution andstates that an order would be made in terms of the PresidentialElections Act at the appropriate stage. It was submitted that thereply does not clear the controversy and uncertainty referred to bythe petitioner and as such it is necessary to proceed with theapplication. The Attorney-General had no objection for leave toproceed being granted since there is an ambiguity in the relevantprovision of the Constitution viz:
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Article 31 (3A) (d) (i), that involve questions of interpretation,being within the sole and exclusive jurisdiction of this Court, interms of Article 125(1) of the Constitution. Since the question is ofgeneral and public importance, the hearing was referred to aDivisional Bench at the earliest possible date taking into accountthe urgency of the matter. For the same reason applications forintervention were not allowed but Counsel representing every suchparty was permitted to make submissions on the question ofinterpretation, as amicus curiae.
The ambiguity is in relation to a provision included in the ThirdAmendment to the Constitution. Suffice it for the present to startthat the objective of the Third Amendment was to enable anincumbent President, in the first term of office, after the expirationof four years, to seek a mandate by election to hold office for afurther term. To get straight to the point, the issue is in regard to thecommencement of the second term of office, if the incumbentPresident is declared elected at such an election.
Although seemingly narrow in its ambit considering the seriousimplications on other basic provisions of the Constitution, that wouldbe adverted to, it is necessary to examine the issue in the light of thepre-existing legal framework and the factual matrix that gave rise tothe Amendment, as may be gathered from official records.
The post-independence Dominion Constitution of 1948 and thefirst Republican Constitution of 1972 were based on theWestminster model of Parliamentary and Cabinet Government withthe Prime Minister elected to Parliament from one of the 168Electorates (according to the last delimitation of electorates) in thecountry being the head of the Cabinet of Ministers. The Governor-General and later the President whose functions were moreceremonial in nature was nominated by the Prime Minister (videSection 25 of the 1972 Constitution) and acted on the advice of thePrime Minister (Section 27(1)). The Parliament elected under thefirst Republican Constitution on 21.7.1977 made the secondAmendment to the 1972 Constitution on 20.10.1977 that had the farreaching effect of altering the form of Government to that of anExecutive Presidency. Section 5 of the Constitution was amendedto provide that the executive power of the People including thedefence of Sri Lanka shall be exercised by the President and
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Section 20 was amended to provide that the President shall be the“Head of the Executive, Head of the Government and theCommander-in-Chief of the armed forces."
A new Section 26 was introduced to provide that the "Presidentshall be elected by the People and shall hold office for a term of sixyears from the date of assumption of office". However, aPresidential Election was not held as required by this provision andSection 28B brought in by this Amendment stated as follows:
"Notwithstanding anything to the contrary in the otherprovisions of the Constitution, the person holding the office ofPrime Minister on the day immediately preceding the date ofcoming into operation of this section, shall be deemed for allpurposes to have been elected the President of the Republicand the provisions of Section 25 shall apply to him. SuchPresident shall hold office for a period of six years from thedate of assumption of office."
It is seen that Section 28B encompasses a threefold fiction, viz:
The person holding the office of Prime Minister is deemed to bethe Executive President;
The person who was elected to Parliament from one of the 168Electorates to wit: Colombo West, is deemed "for all purposes"to have been elected by the People of Sri Lanka.
That person will hold the office of Executive President for aperiod of six years from the date of assumption of office.
The same Parliament adopted and enacted the presentlyoperative second Republican Constitution certified on 31.8.1978.Although the basic provisions of the new Constitution; Article 4(b)as to the exercise of the sovereignty of the People; Article 4(e) asto the franchise of the People; Article 30(2) as to the term of officeof the President and other provisions such as Articles 92, 93 and94, provide for the President to be elected by the People, in factthere was no election. Instead, Article 160 stated as follows:
"Notwithstanding anything to the contrary in any otherprovision of the Constitution, the person holding the office ofPresident immediately before the commencement of the
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Constitution shall be the first President under the Constitutionand shall be deemed for all purposes to have been elected asthe President of the Republic, and shall hold office for a periodof six years from February 4, 1978."
It is seen that this Article takes over mutatis mutandis the three-fold fiction as contained in Section 28B cited above. One significantalteration is that the term of office of the President who is deemedto have been elected by the People is for a period of six years from4.2.1978.
Although that the Constitution provides for a Parliament electedaccording to proportional representation. Article 161(a) states thatthe members of the National State Assembly elected under theprevious Constitution on the basis of a "first past the post” (FPP)election shall be deemed to have been elected as Members ofParliament under the new Constitution. Article 161 (e) provided thatunless sooner dissolved Parliament shall continue for six yearsfrom 4.8.1977.
The only organ of Government not assured continuity of officeunder the new constitution was the higher judiciary. Article 163ominously provided that all Judges of the Supreme Court and theHigh Court (there being no Court of Appeal constituted as atpresent at that time) holding office on the day immediately beforethe commencement of the Constitution, shall on thecommencement of the Constitution cease to hold office. Somewere re-appointed and some were not. The members of the higherjudiciary were thereby denied continuity in office assured to allothers in the judicial service (minor judiciary) public service, localgovernment service and employees of public corporations, byArticle 164 of the Constitution. The resulting position is that allJudges of the Supreme Court, the newly created Court of Appealand the High Court had to receive their appointments from theperson who was deemed to be the President. Thereby the genesisof the 1978 Constitution was effectively put beyond the pale ofjudicial review.
Continuity in office under the new Constitution without recourseto the exercise of the franchise was thus assured to the ExecutivePresident upto 4.2.1984, and the Parliament upto 4.8.1983.
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Amendments to the Constitution effected in 1982, that deal withthese two matters, as to the term of office of the President and ofParliament, are devoid of any general legislative purpose and areexplicable only on the factual matrix that gave rise to them, whichmust necessarily be stated for a proper understanding of itscontent.
The Judgment of this Court in the case of Bandaranaike vWeeraratne and others0) at 14 records that a Resolution waspassed by Parliament under Article 81(1) of the Constitutionimposing civil disability on the leader of the main political party inopposition and expelling her from Parliament, whilst an applicationwas pending in this Court challenging the findings of the SpecialPresidential Commission of Inquiry on the basis of which theresolution was presented in Parliament. The Court dismissed theapplication in limine on the basis of the preclusive clause in Article81(3) of the Constitution. The judgment states as follows:
"There is. therefore, a peculiar duty resting on this Courtto uphold and give effect to a provision of the Constitutionand we have no alternative but to give proper effect to thepreclusive clause in Article 81(3) …"
To continue with the sequence of events on 27.8.1982, the ThirdAmendment, now in issue, was made to the Constitution to enablethe incumbent President to seek a further mandate after completingfour years in office. The Amendment was immediately availed ofand on 17.9.1982, nominations were received for the PresidentialElection and at the election held on 20.10.1982, the incumbentPresident was declared elected. Within a fortnight of triePresidential election an urgent Bill was referred to this Court by thePresident for a special determination in terms of Article 122(1 )(b) ofthe Constitution. The Bill titled the Fourth Amendment to theConstitution had a single clause to repeal Article 161(e) as to theterm of the Parliament and extend it for a further six years upto4.8.1989. An objection was raised that the term of the Parliament,not elected under the Constitution, cannot be validly extended interms of Articles 62(2) and 83(a) of the Constitution even with aReferendum. A bench of seven Judges of this Court wasconstituted to consider the matter. The determination of the Court(Decisions of the Supreme Court on Parliamentary Bills
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1978-1983 – Vol. 1 page 151) which runs into a few lines recordsthat the majority of the Court was of the view that in view of theprovisions to proviso (a) of Article 120 the Court cannot exercisejurisdiction in respect of the Bill. In a single sentence it is recordedthat: "Three members of this Court are not in agreement with theabove view."
The same Parliament passed the Bill with 2/3 majority and thereferendum was held on 22.12.1982, the results of which revealthat the Amendment although approved on the total poll, wasoverwhelmingly rejected in all the Districts of the Northern andEastern Provinces except the District of Digamadulla. The DistrictJaffna exemplifies the rejection with only 25,315 voting in favour ofthe Amendment and 265,534 voting against it. The conflict in theNorth and East exacerbated to an armed conflict with a spiral ofviolence leading to the ethnic violence of July 1983. The finalAmendment to the Constitution, in this group of Amendments to viz:the Sixth Amendment made shortly after the July violence, on8.8.1983, contains a prohibition against the violation of theterritorial integrity of Sri Lanka and the requirement to take an oathin the seventh schedule not to promote and advocate theestablishment of a Separate State. The Members of Parliament,including the Leader of the Opposition, who represented the TamilUnited Liberation Front did not take this oath and vacated theirseats in Parliament and the conflict was irretrievably removed froma Democratic platform to the hands of an armed group resulting ina horrendous loss of life and property. The loss of irreplaceablevaluable lives continue unabated.
I recounted the foregoing events, that require sober and deepreflection, albeit briefly, as the factual matrix from which the threeAmendments, commencing with the one at issue emerged. TheAmendments are inexplicable in logic and common-sense.They do not even remotely advance a general legislativepurpose based on good governance and transparency. Theyare explicable only on the basis of personal and partisaninterests, advanced regrettably through the medium of thelaw.
In the background stated above, I would now refer to the generalprovisions in the Second Amendment to the 1972 Constitution and
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the present Constitution as regards the term of office of thePresident and its commencement without adverting to the fictionsintroduced for the benefit of the incumbent in office dealt withabove.
Section 26(1) of the Second Amendment to the 1972Constitution provided as follows:
"The President of the Republic shall be elected by thePeople, and shall hold office for a term of six years fromthe date of assumption of office. No person shall hold theoffice of President for more than two consecutiveterms:…."
It is seen that the term is fixed at six years commencing from"the date of assumption of office".
Section 28 provided that if the President vacated office duringthis period the National State Assembly will elect a President for theremainder of the period.
In the present Constitution Article 30(2) the contents of whichwould be examined morefully hereafter, provides a fixed six yearterm, any mid-term vacancy will be filled by a MP elected for thebalance period from Parliament. According to Article 30(3) the pollfor the election of the next President has to be taken not less thanone month and not more than two months from the expiration of theterm of office of the incumbent President. Under Article 30(4) thenext term of office of the President commences on the fourth dayFebruary next succeeding the date of election. Thus theConstitutional scheme upto the Third Amendment was explicit, witha fixed six year term made more specific in the present Constitutionwith a fixed date of commencement being the fourth of February.The fixed term, fixed date, arrangement is obviously drawn from thesystem in the United States. Since the incumbent President's termwas fictitiously stated to commence on 4.2.1978 by Article 160referred to above, no term of office would exceed the six yearperiod laid down in the entrenched provision in Article 30(2). Thisscheme makes sense because the President has a discretion ofdissolving Parliament after one year, the President is thereforedenied the added power of manoeuvring the date of his secondelection to his advantage.
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The carefully laid out scheme was cast asunder by the ThirdAmendment and the President was invested the power tomanoeuvre the date of election for the second term at any timeafter the completion of four years of the first term.This necessarilyupset the provision in Article 30(4) fixing the date ofcommencement of the new term as the fourth of February, whichwas accordingly repealed by the Third Amendment. In its place theAmendment introduced three provisions that fix the date ofcommencement of the term of office of the President.
Two provisions contained in Article 31(3A) (d) relate to an earlyelection before completing the full period of six years. The other, inthe replaced provision 30(4) relates to an election upon a full termof office. I would deal with these provisions in the order of simplicityof its content-
Article 30(4); election held in the ordinary course upon a fullterm of office of six years. Then the term of office of theperson elected will commence on the expiration of the termof office of the President in office.
In terms of proviso (b) to this Article, if the incumbentPresident is not a candidate or fails to win, his term of officeis deemed to expire on the date of the election andconsequently the successful candidate's term willcommence on the date of his election.
Article 31 (3A)(d)(ii); election is held before the expiry of thefirst term of office, after four years or more and theincumbent President does not win that election, the term ofoffice of the successful candidate will commence on thedate he is declared elected.
Article 31(3A)(d)(i); election is held as stated in (ii) aboveand the President in office is declared elected, the date ofcommencement of the second term of office is to bereckoned according to this provision. Since the issueinvolves primarily, an interpretation of this provision I wouldre-produce the entirety of sub-paragraph (d)(i) which readsas follows:
The person declared elected as President at an electionheld under this paragraph shall, if such person –
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i) is the President in office, hold office for a term of six yearscommencing on such date in the year in which thatelection is held (being a date after such election) or in thesucceeding years, as corresponds to the date on whichhis first term of office commenced whichever date isearlier;
The provisions referred to in (i) and (ii) are easily comprehendedand the date of commencement of the term of office is clearlyascertainable, as it necessarily should be. Situation in (iii) abovehas none of these characteristics of simplicity and clarity. I have toobserve on the chronology of events and the facts relevant to thattime, set out in the preceding section of the Judgment that theformula in (iii) was intended to cover the case of the then incumbentPresident who obviously initiated the Third Amendment as theHead of Government. He availed of the Amendment and issued aProclamation in terms of Article 31(3A)(a)(1) to commence theelectoral process on 27th August 1982 (vide Government GazetteNo. 207/12 of 27.8.1982) being the same day on which the Speakercertified the Third Amendment.
The words used in sub-paragraph (d)(i) are manifestlycontorted. The contortion is not the result of slovenly drafting assubmitted by Mr. Sumanthiran, since the other provisions aredrafted with clarity and the same formula of the term commencingon the date the result of the election is declared, could easily havebeen adopted.
The contortion was intended to seemingly arrive at a date thatwas in mind, being the fourth of February, as borne out bysubsequent events that will be referred to. This result could only bearrived at with reference to the date of commencement of the firstterm. As noted above, the first Presidency was based on a threefoldfiction. As regards the term of office, Article 160 referred to, statedthat the incumbent President "shall be deemed for all purposes tohave been elected as the President of the Republic and shall holdoffice for a period of six years from February 4, 1978." Although theperiod of six years is from February 4, 1978, Article 160 did notspecifically state that the term of office commenced on that date. Itappears that for this reason an amendment was moved atCommittee Stage in Parliament to the Third Amendment Bill to add
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another to the threefold fiction referred to above by providing thatthe first term of office of the first President is deemed to havecommenced on February 4,1978. This fourth fiction addedsignificantly at Committee Stage in Parliament, after the SupremeCourt had examined the constitutionally of the Bill now appears asArticle 31(3A)(f) of the Third Amendment and reads as follows:
"(f) For the purposes of this paragraph, the first term of officeof the first President referred to in Article 160 shall be deemedto have commenced on February 4, 1978."
This provision fits in with the formula in sub-paragraph (d)(i) andseemingly pushes the date of commencement of the second termof office to February 4th of the next year. The then incumbentPresident who benefited from the process set out above, won theelection and assumed office on February 4, 1983, in the grandeurof the independence day parade at Galle Face Green, held tocommemorate the 35th Anniversary of our country gainingindependence, by subscribing to the affirmation (oath) before thethen Chief Justice, whereas he was declared elected on21.10.1982. The then Commissioner of Elections, it is seencomputed the President's term of office as commencing on4.2.1983 and not 20.10.1982, since the next Presidential Electionwas held on 19.12.1988.
As regards the incumbent President, her first term of officecommenced upon election on 10.11.1994. She called for an earlyelection in terms of Article 31(3A)(a)(1) and was declared electedon 22.12.1999. Since the commencement of the first term was on10th November (1994) which is before the date of election 22nddecember (1999), it is the contention of Mr. H.L.de Silva,Mr. Sumanthiran and the Attorney-General (who made the finalsubmission) that in applying the formula in sub-paragraph (d)(i), thedate of commencement of the second term should be taken as 10thNovember 2000. They found it difficult to ascribe a meaning to thelast phrase of the sub-paragraph appearing after the comma,"whichever date is earlier.” These words in the last phrasecontemplate the comparison of two dates. It was contended that"date" means only the month and the day in the next succeedingyear viz: the year 2000. On that basis the comparison will bebetween 22nd December being the date of election and 10th
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November being the date of commencement of the first term ofoffice. The earlier date being 10th November, the term of officeshould be taken as having commenced on 10th November 2000.When observed by Court that the word “date" appearing in the lastphrase reproduced above should have its normal connotation of aday, month and an year and that date of election being 22ndDecember 1999, can never be taken as 22nd December 2000solely to carry out a senseless comparison, Mr. de Silva contendedthat words in the last phrase would apply only in a situation inwhich, the day and month of the commencement of the first termwould fall after the day and month of the election. It was submittedthat in which event the date of election being the earlier date shouldbe taken as the date of commencement of the term of office. Theillogical and unreasonable result that would follow such aninterpretation was pointed out on the basis of two hypotheticaldates as the date of commencement of the first term considered inrelation to the actual date of election for the second term viz: 22ndDecember 1999. If the 21st of December (1994) is taken as thecommencement of the first term, since the corresponding dateshould be a date after the date of election, the second term wouldcommence on 21st December 2000. On the other hand, if the firstterm is taken to have commenced on 23rd December (1994) thereis no necessity in terms of the formula in the sub-paragraph to shiftto the succeeding year and the corresponding date could be fixedin the year of election itself. Then the comparison would bebetween two dates in the year of election viz: the 23rd Decemberand 22nd December and earlier date would be 22nd on which datethe term of office would commence. Thus a difference of 2 days inthe date of commencement of the first term will result in a differenceof almost 1 year in the second term of office. When this was pointedout, Mr. de Silva contended that the task of the Court is merely tointerpret the sub-paragraph giving its words their ordinary meaningeven if such meaning could in comparable situations producevastly different results as to the commencement of the secondterm. On such an interpretation the actual duration of the secondterm computed from the election to the expiration of the term ofoffice would vary from six years to nearly seven years.
On the other hand Mr. Manohara de Silva for the petitioner andMr. Elmore Perera for the Commissioner cut the 'Gordian knot1 by
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submitting that sub-paragraph (d)(i) would not apply since thecorresponding date viz: the commencement of the first term 10thNovember, is earlier to the date of the second election, 22ndDecember. It was submitted that the sub-paragraph would applyonly if the corresponding date is later in the year in which theelection was held and there is no basis whatever to shift the year ofcommencement of office to 2000 when the Election was in the year1999. It was therefore submitted that the “knotted up" formula insub-paragraph (d)(i) be cut off and the term of office be ascertainedin terms of a basic provision of the Constitution viz: Article 30(2)which reads as follows:
"The President of the Republic shall be elected by the people ,and shall hold office for a term of six years."
It was submitted that the term of office of six years is directlylinked to the election by the people and the commencement of theterm should be taken as the date of such election. Mr. Perera citedpassages from Bindra's Interpretation of Statutes, in the chaptertitled "Interpretation of Constitution" and submitted that theinterpretation that is given should ensure a smooth and harmoniousworking of the Constitution and avoid an absurdity giving rise topractical inconvenience.
It is appropriate at this stage to cite some relevant rules ofinterpretation of statues from judgments and well recognized textson the subject before moving to an analysis of the vastly differentsubmissions.
In the case of Johnson v Moretorf2>, the House of Lordsconsidered the protection granted to tenant farmers under Section24(1) of the Agricultural Holdings Act 1948, vis-a-vis the freedomand sanctity of contract considered as having pre-eminent legalvalues at Common Law. The observations made by every one ofthe Law Lords in the opinions that were delivered in appreciation ofthe great service rendered by tenant farmers to England, theirimmense effort put into agriculture, animal husbandry and thepreservation of the fertility of the soil and that the protection of thetenant farmers should not only be a matter of public importance butof national importance, are useful to an agricultural country such asSri Lanka, sadly affected by a metamorphosis of cherished values
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steeped in a rich heritage. Significantly, Lord Simon decried thedriving force of man's pursuit of his own interest couched in thecliche, "man's selfishness is Gods providence". The overpoweringreasoning that emerge from all the opinions is that the nationalinterest should prevail over personal gain. On that basis it was heldthat the protection granted to a tenant farmer cannot be renouncedby contract and the contract was to that extent held to be null andvoid although there was no express provision in the law nullifyingsuch a contract. Lord Salmon (at 41 and 42) streamed up by statingthree important principles of interpretation of statutes, gleaned fromprecedents as follows:
"If the language of a statute be plain, admitting of only onemeaning, the legislature must be taken to have meant andintended what it has plainly expressed, and whatever it has inclear terms enacted must be enforced though it should lead toabsurd or mischievous results: Vacher & Sons Ltd, v LondonSociety of Compositor^) at 121 – Per Lord Atkinson.
The courts have no power to fill in a gap in a statute, evenif satisfied that it had been overlooked by the legislature andthat if the legislature had been aware of the gap. thelegislature would have filled it in Gladstone v Boweri4);Brandling v Barrington<5) at 575.
If the words of a statute are capable, without beingdistorted, of more than one meaning, the courts should preferthe meaning which leads to a sensible and just resultcomplying with the statutory objective and reject the meaningwhich leads to absurdity or injustice and is repugnant to thestatutory objective; River Wear Comr. v Adamsonfi) per LordBlackburn at 763. Attorney-General v HRH Prince ErnestAugustus of Hanoveri7) per Viscount Simonds at 54; Stock vFrank Jones (Tipton) LtdS8) per Lord Simon of Glaisdale at953."
The submissions of Mr. H.L.de Silva, Mr. Sumanthiran and theAttorney-General tend to draw on the first principle cited abovewhereas the submissions of Mr. Manohara de Silva and Mr. Pereraare based on the third principle.
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Dayananda Dissanayake and another (Sarath N. Silva ,CJ.)
It is seen that for the first principle to apply the language of thestatute has to be "plain admitting of only one meaning". It is only insuch situations that the "clear terms enacted must be enforcedthough it should lead to absurd or mischievous results." Words ofsub-paragraph (d)(1)* in issue in this case are anything but plain anda "meaning" could be drawn from these words only in relation tothe facts stated above being far removed from statutoryinterpretation. Hence we have to move from the first principle whichcould be described as the rule of literal construction (interpretation)to the third principle which involves elements of "consequentialconstruction." Of, testing the literal meaning against the practicaloutcome, Francis Bennion in his work titled "Statutory Interpretation(3rd Edition-1997) at page 660 has stated the process ofconsequential construction citing dicta of Mustill, J. and of LordRadcliffe as follows:
"The modern attitude is indicated by a dictum of Mustill J, that'a statute or contract cannot be interpreted according to itsliteral meaning without testing that meaning against thepractical outcome of giving effect to it R. v Committee ofLloyd's, ex p MoranS9>
Some modern judges have gone so far as to suggest that thecorrect course is to start by considering which result would bedesirable, and then see if the law permits it. Thus LordRadcliffe said "it sometimes helps to asses the merits of adecision, if one starts by noticing its results and only afterdoing that allots to it the legal principles upon which it is saidto depend" – ICI Ltd. v ShatwelK10> at 675.
Lord Radcliffe went on to say that in the instant case he hadbegun by considering the consequences of the apparentmeaning of the enactment, and found these disquieting. Hewent on " I start then with the assumption that something musthave gone wrong in the application of legal principles thatproduce such a result (page 676).
More in line with the same principle of interpretation, theSupreme Court of India, in the case of Bhatia International v BulkTrading S.7K11)at 1437 and 1438, stated as follows:
138Sri Lanka Law Reports[2008) 2 Sri L.R
"The courts have taken the view that the judicial art ofinterpretation and appraisal is imbued with creativity and realismand since interpretation always implied a degree of discretionand choice, the court would adopt particularly in areas such asconstitutional adjudication dealing with social and (sic) rights.Courts are therefore, held as “finishers, refiners, and polishersof legislatures which gives them in a state requiring varyingdegrees of further processing. If language used is capable ofbearing more than one construction, in selecting the truemeaning, regard must be had to the consequences, resultingfrom adopting the alternative constructions. A construction thatresults in hardship, serious inconvenience, injustice, absurdityor anomaly or which leads to inconsistency or uncertainty andfriction in the system which the statute purports to regulate hasto be rejected and preference should be given to thatconstruction which avoids such results. In selecting out ofdifferent interpretations the court will adopt that which is justreasonable and sensible rather than that which is none of thosethings, as it may be presumed that the legislature should haveused the word in that interpretation which least offends oursense of justice."
In the background of the preceding statements of the relevantrules of interpretation of statutes, I have to now revert to theinescapable provision in sub-paragraph (d)(i). There is no principleof interpretation of statutes on which the submission ofMr. Manohara de Silva to cut off sub-paragraph (d)(i) as beinginapplicable could be upheld. As stated before, the ThirdAmendment contains three provisions, covering distinct situationsand lay down the manner in which the date of commencement ofthe term of office of the President is to be determined. Sub-paragraph (d)(i) covers specifically the situation at issue where aPresident in the first term of office calls for an election after 4 yearsand is re-elected for a further term. The phrase "cut the Gordianknot" is attributed to an act of Alexander the Great King Gordiuswas the ruler of the area now forming Turkey was known as a tierknot. He p'roclaimed that any person who removed the knot that hetied would rule the whole of Asia. Alexander the Great whenpresented with this knot simply cut it off with one swipe of hissword. Judges are not Emperors. They are only upholders of the
SCOmalpe Sobhita Thero v139
Dayananda Dissanayake and another (Sarath N. Silva ,C.J.)
Rule of Law. Hence sub-paragraph (d)(i) being the provision whichapplies cannot be cut off. It has to be interpreted according to theprinciples stated above.
It is plain that sub-paragraph (d)(i) beings into the formula thedate of the commencement of the first term of office. If the wordsare taken by themselves all counsel conceded that it makes nosense whatsoever to incorporate a reference to the date of thecommencement of the first term. The incorporation of the datemakes "sense" only in the light of the particular circumstancesgiven above. Whatever be the peculiarity of the* source.of thesewords, we are now stuck with them and words have to beinterpreted. Applying the formula to the dates relevant to this casewe arrive at the date 10th November 2000. But that it is not the endof the provision. The vital words in my view, are found after thecomma in the final phrase that read as 'whichever date is earlier'.The preceding words of the sub-paragraph provide for a mereartificial fixation of a date. The words that require interpretation isthe phrase at the end. The earlier date could be determined onlyon a comparison of two dates. The submission of Mr. de Silva, thatthese words have meaning only in some situations and have nomeaning in other situations is not based on any principle ofinterpretation. Similarly the submission that the words "whicheverdate" means month and day only, cannot be accepted. This phraseis separated from rest sub-paragraph with a comma and each ofthe dates contemplated therein should be identifiable withreference to a day, month and the year. Hence we have tonecessarily compare two dates, with reference to day month andyear from which the earlier one is taken as the date ofcommencement of office of the second term.
The first date referred to in the sub-paragraph is the date of theelection. It is only with reference to the date of election that the otherdate as corresponds to the date of the commencement of the firstterm of office is fixed. If the corresponding date is before the date ofelection, it is shifted to the succeeding year. If the corresponding dateis after the date of election it would remain in the year of electionitself. Thus the date of election in effect is the pivotal date in the sub-paragraph and should be reckoned as one of the dates in thecomparison that is required. When considered in the light of the third
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principle stated by Lord Salmon (cited above) the inclusion of thedate of electron as one of the dates to be reckoned, does not lead toabsurdity or injustice or repugnancy with the statutory objective. Onthe contrary, the reckoning of a date that corresponds to the date ofthe commencement of the first term fixed according to the formulathat is given either in the year of the election or the succeeding year,attracts all the negative considerations of absurdity, injustice andrepugnancy with the statutory objective. Therefore in my view, in theabsence of an express provision to that effect either way the correctinterpretation consistent with the principles stated above is tointerpret the provisions of sub-paragraphs (d)(i) on the basis that thedate of election being the pivotal date is one of the dates to bereckoned in applying the provisions. The other date has to be fixedcorresponding to the commencement of the first term of office eitherin the year of the election or the succeeding year, according to theformula given in the sub-paragraph. When applied to the presentcase, the date of the election was the 22nd December 1999. The firstterm of office commenced on 10th November 1994. Thecorresponding date fixed according to the formula in the sub-paragraph would be 10th November 2000. Hence, as between thesetwo dates, the earlier date is 22nd December 1999. The strength andcredibility of this interpretation lies in the fact that on whatevercombination of dates adopted in applying the formula in the sub-paragraph, the invariable result would be that the date ofcommencement of office will be the date of election for the secondterm. This would avoid the widely varying dates that will result fromadopting the interpretation contended for by counsel referred above.
The foregoing interpretation will result in the provisions of sub-paragraph (d)(i) being consistent with the other provisions that dealwith the commencement of the term of office of the President andalso being consistent with other basic provisions of the Constitution.
Article 4 which lays down the manner in which the sovereignty ofthe People is exercised states in paragraph (b) as to the exercise ofexecutive power as follows:
"(b) the executive power of the People, including the defence of
Sri Lanka, shall be exercised by the President of the Republic
elected by the People:
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Dayananda Dissanayake and another (Sarath N. Silya , C.J.)
Thus the authority for the exercise of executive power stems fromthe election by the People. The franchise which forms part of thesovereignty of the People as stated in Article 3 of the Constitution isexercised inter alia at the election of the President as provided inArticle 4(e). Similarly Article 30(2) reproduced above directly links theterm of office of six years to the election by the People. Accordinglythe provisions for the exercise of sovereignty of the People, thefranchise and the term of office of the President have a vital commonfactor that connects the exercise of executive power by thePresident, to the election by the People. These are entrenchedprovisions of the Constitution, the repeal or amendment of or, anyinconsistency with, would require not only 2./3rd majority inParliament but also approval by the People at a Referendum in termsof Article 83. Commencement of the term of office of the President,signifies the commencement of the exercise of the executive powerof the People on the authority of the mandate received at theelection. The mandate is based on the exercise of the franchise atthe election of the President in terms of Article 3 read with Article 4(e)of the Constitution. Viewed from this perspective it is in accord withthe basic premise of the Constitution that the term of office of thePresident should commence on the date of election. Theinterpretation given above to the provisions of Article 31(3A)(d)(i)which produce the same result draws its highest strength from thisbasic premise of the Constitution.
It is in my view unnecessary to go through the contorted formulain the sub-paragraph to arrive at this result which would be the samewhen due meaning is given to the phrase "whichever date is earlier."The contorted formula could at first blush lead to a date in thesucceeding year. Perhaps the draftsman succeeded to the extentand the then incumbent President availed of it by ceremoniallycommencing his term of office on the 4th of February 1983 in thecelebrations to commemorate the 35th year of the country gainingindependence, an event hailed at that time as the dawn of a 'goldenera.' But, the hand that guided the draftsman also included the words"whatever date is earlier" at the end of the sub-paragraph, on aproper interpretation of which, the provision could be brought inaccord with the firm moorings of the Constitution.
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Accordingly, I hold that the provisions of Article 31(3A)(d)(i) should be interpreted on the basis that President willhold office for a period of six years commencing on the dateon which the result of the election is declared being in thepresent case 22nd December 1999. The 1st respondent isdirected to take steps on that basis to conduct the Poll for theelection of the President in terms of Article 31 (3) and the applicablelaw.
These proceedings commenced on the application filed by theVenerable Thera in terms of Article 126. The Court has exercisedjurisdiction in terms of Article 126(2) and Article 125 of theConstitution as stated in the order granting leave to proceed. ThePetitioner is granted the declaration prayed for in paragraph (b) ofthe prayer to the petition without any finding against the 1strespondent. Since this application has been filed in the publicinterest and the determination sought by the petitioner has beenmade, it would not be necessary to grant any further relief. Theapplication is allowed. No costs.
JAYASINGHE, J.-I agree.
UDALAGAMA, J.-Iagree.
DISSANAYAKE, J.-Iagree
AMARATUNGA, J.-Iagree
Application allowed.
President will hold office for a period of six years commencing on thedate on which the result of the election is declared being in thepresent case 22.12.1999.
The 1st respondent is directed to take steps on that basis to conductthe poll for the election of the President in terms of Article 31(3) andthe applicable law.