The Legality and Legitimacy of Presidential

Term Limits: A Response to Dr Nihal

Jayawickrama

Featured image by NDTV

ASANGA WELIKALA- 08/25/2018

There has recently been a flurry of comment and

speculation about whether, due to a technical flaw in the Nineteenth Amendment
to the Constitution (2015), former President Rajapaksa may actually be eligible to
offer himself for election at the next presidential election, although it had so far
been universally assumed that he was disqualified by virtue of having been twice
elected previously to the presidency.
A legal argument to this effect has most completely been made by the
distinguished jurist, Dr Nihal Jayawickrama. In his recent article for The Sunday
Island, Dr Jayawickrama argues that the disqualification from running for
presidential office imposed on persons who have been twice elected to the
presidency applies only to the future, and not retrospectively to those who were
twice elected to that office prior to the changes introduced by the Nineteenth
Amendment. This argument rests on the following claims:
1. The Nineteenth Amendment repealed and replaced, and not merely
amended, the office of President in the 1978 Constitution, as borne out by
the particular drafting technique adopted in the Nineteenth Amendment in
relation to the provisions on the executive, and in its transitional
provisions;
2. The powers, functions, and duties of the new office of President are
“fundamentally different” from those of its predecessor, and the post-
Nineteenth Amendment presidency is “essentially non-executive, primarily
symbolic and ceremonial”;
3. Article 31(2), which provides for the two-term limit, is “an entirely new
prohibition on a citizen’s right to be nominated to stand for election and to
be elected”;
4. Since the Nineteenth Amendment does not, with express words, show the
intention of Parliament to make this prohibition applicable retrospectively,
the prohibition must be treated as only applying to the future;
5. For these reasons, the two living former Presidents, Kumaratunga and
Rajapaksa, both previously twice elected to the pre-Nineteenth
Amendment presidency and not legally made subject to the prohibition, are
eligible to stand for presidential office.
With a startlingly counterintuitive premise, Dr Jayawickrama’s article has certainly
succeeded in creating a minor sensation due to its boldness, originality, and
timing. In passing, he makes some telling points: for example, the absurdity of the
findings about the ‘symbol of national unity’ by the Supreme Court, and thead
hominemuse of constitutional amendment legislation to assign ministries to the
President. If his main legal argument is accepted, however, the political
consequences are potentially enormous, not least by paving the way for former
President Rajapaksa to contest again (it is not apparent that former President
Kumaratunga has an intention of doing so). In this essay, speculating on such
political outcomes is not my concern, but to carefully – and I hope, constructively
– evaluate the legal merits of the argument as an approach to constitutional
interpretation. I have both a narrow and a broader purpose. In the former sense, I
want to assess the argument purely from a juristic point of view, to understand if
the legal principles that are implicated in Dr Jayawickrama’s argument are
correctly applied.
My broader purpose is this: how persuasive is Dr Jayawickrama’s argument,
viewed against all the factors that we must consider in expounding our
constitution in a way that is consistent with both its text and underlying values, as
well as respectful of the basic intuitions and credulity of citizens in a long-
established democracy? In other words, does it comport with common sense as
well as legal sense? Are there salient issues that perhaps Dr Jayawickrama has
failed to consider, or weighted insufficiently, in coming to his conclusions? What
public interest does it serve, aside from showcasing its exponent’s undoubted
talents as a clever and resourceful lawyer? What to make of several awkward
infelicities such as, “In 1978, what the National State Assembly established,
through the new Constitution, was the office of Executive President”, when we
know that it was not the new constitution but an amendment to the 1972
Constitution that established the executive presidency?
As I will show, when analysed in the light of all these relevant considerations, Dr
Jayawickrama’s highly legalistic argument fails to impress either as an explanatory
account of the Nineteenth Amendment and the constitutional changes it
introduced on the back of one of the most compelling electoral mandates for
democratisation in recent memory, or as a recommendation of how to interpret
the constitution consistently with the values of constitutional democracy.
Unfortunately – and I very much doubt if this was Dr Jayawickrama’s intention –
the account he has offered ultimately emboldens populism and authoritarianism
rather than the democratic ethics of limited government. That is not what most
people would expect from someone who is, among many other national and
international accomplishments, the author of a major Cambridge University Press
textbook on the international and comparative law of human rights.
In arguing that the nature of the presidency was changed fundamentally by the
Nineteenth Amendment, Dr Jayawickrama makes much of the fact that the
drafters chose to repeal and replace rather than merely amend Article 30, which
establishes the office of President. Since, however, the only change made by the
substituted Article 30 is to reduce the presidential term of office from six to five
years – simply by changing one word – Dr Jayawickrama believes that this must
mean that the drafters intended the new provision to establish an entirely new
constitutional office, rather than only amend the term of the existing and
continuing presidency. The logic underlying this claim is not immediately clear to
me, and I am not sure if so much can or ought to be made of a drafting device.
Surely if the aim was to render toothless the over-mighty post-Eighteenth
Amendment executive presidency – as Dr Jayawickrama claims is the effect of the
Nineteenth Amendment – then there are far more direct and obvious ways of
doing so than using one drafting technique as opposed to another. No doubt the
Legal Draughtsman’s Department would be able to provide a straightforward
clarification of the drafting policies and protocols they use, but an examination of
the nineteen amendment Acts to the 1978 Constitution does not readily reveal
when or why replacement is used over amendment. Without further information
of the kind that can only be provided by the Legal Draughtsman’s Department,
the choice of one or other device, as can be gathered from the face of the
amending Acts, is not a reliable indicator of legislative intent.
If so much is to be made of this nevertheless, then what is the effect of
‘insertions’, which is another drafting device? Do insertions amend the
constitution? Can they impliedly repeal older inconsistent provisions? Aside from
changing the duration of the presidential term, the other difference between the
old and new Article 30 is that the latter drops the comma after the word
‘Government’? What are we to make of this? Is this a mere lapse, or is something
more sinister going on? Pointing out these abstruse possibilities is not to ridicule a
serious argument, but to demonstrate the manifest absurdities that we can be led
to when we adopt excessively technical and legalistic attitudes to making sense of
law. As with the numerous apocryphal tales in the lore of Sri Lankan law (e.g. that
a ‘vangediya’ and not a human being killed Mrs Sathasivam), there may have
been a time when lawyerly casuistry was the object of lay admiration, but no
longer and quite properly so.
The argument that the Nineteenth Amendment wholly reconfigured the
presidency flies in the face not only of the structure and text of the 1978
Constitution before and after it, but also of the entire set of circumstances that
obtained between the presidential election of January and the certification of the
Nineteenth Amendment in May 2015. The early radicalism of the proposal for the
total abolition of the executive presidency when the popular campaign against
the Rajapaksa regime began in 2014 was gradually and consistently diluted by the
need for political consensus and compromise. The multiple compromises that
made the necessary legislative majority possible are reflected in the text of the
Nineteenth Amendment as enacted, including several incoherent features (e.g.
that the President does not require prime ministerial advice in changing subjects
and reallocating ministries, but does so in relation to ministerial appointments
and dismissals).
Politically, this complicated context was determined by the demands of coalition
building around the common candidacy of Maithripala Sirisena, the ambiguities of
political agreements and promises within this wide and disparate coalition, the
resulting equivocality of Sirisena’s mandate as between reform or abolition, the
schism in the Sri Lanka Freedom Party, and the constraints imposed on the new
President and his minority government by a hostile majority in Parliament.
Legally, continuity and consistency with the existing constitution rather than
radical change were also dictated by the new government’s decision to avoid a
referendum in this first phase of its constitutional reform project. The Supreme
Court’s pre-enactment determination on the Nineteenth Amendment Bill, among
other things, disallowed the Bill’s original proposition that the Prime Minister be
made the Head of Government as that would breach the entrenched provisions of
the 1978 Constitution. The entire purpose of the determination was to make the
Bill consistent with the constitution, and to point out those clauses that exceeded
the limits set by the constitution. Nothing in this political and legal background
therefore supports the conclusion that the Nineteenth Amendment was a drastic
change of the sort Dr Jayawickrama now says it is.
On the other hand, there were some elements of reform that remained constant
throughout this turbulent political process. While there was obvious
disagreement within the winning coalition and beyond as to whether the
executive presidency should be abolished in totoor merely reformed, there was
no disagreement whatsoever about reducing the term of the President or re-
imposing the two-term limit. In 2010, the abolition of the two-term limit by the
Eighteenth Amendment thoroughly disquieted the more thoughtful supporters of
the Rajapaksa regime, and directly contributed to its electoral downfall in 2015.
There seems to have been no dispute on these matters in the pre-enactment
proceedings before the Supreme Court and the court makes no pronouncement
on them in the determination except to briefly mention them in a list of changes
proposed in the Nineteenth Amendment Bill. If the effect of these two changes
contributed to a change as fundamental as Dr Jayawickrama alleges it to be, then
it is very unlikely that they would have escaped attention as they did in the
parliamentary debate on the Nineteenth Amendment Bill and in the Supreme
Court proceedings. Rather, the two-term limit was widely seen as simply the
reintroduction of a principle that had found expression in the 1978 Constitution
for 32 years before the aberration of the Eighteenth Amendment extinguished it
for a relatively short period between 2010 and 2015. Article 31(2) – “No person
who has been twice elected to the office of President by the People, shall be
qualified thereafter to be elected to such office by the People” – is not only a
verbatim reproduction of the old provision that was repealed by the Eighteenth
Amendment (except for the insertion of the comma now separating the two limbs
of the formulation), but it also has the identical Article number as in the pre-2010
constitution. It was not, as Dr Jayawickrama states, a “new Article” that brings in
“an entirely new prohibition on a citizen’s right to be nominated to stand for
election and to be elected.” This claim is not so much ahistorical as it is a
complete denial of the broader constitutional reality, but Dr Jayawickrama is
impelled to be selective with the facts so as to contrive the basis for incorporating
the rule against retrospectivity in his argument.
The essential legal principle that is relied on by Dr Jayawickrama to lay down
some sort of normative foundation for his other claims is the well-established rule
concerning the retrospective application of legislation. This is sometimes
expressed in the Latin maxim lex prospicit non respicit (law looks forward not
back). Of many definitions and judicial dicta, the authoritative Bennion on
Statutory Interpretation(7thEd., 2017) is one of the most succinct: “It is a principle
of legal policy that, except in relation to procedural matters, changes in the law
should not take effect retrospectively. Legislation is retrospective if it alters the
legal consequences of things that happened before it came into force” (p.181). It
can thus be understood as a common law principle of general fairness as well as a
canon of interpretation laying down a rebuttable presumption against
retrospective legal effects. In Dr Jayawickrama’s words, “A law is not considered
as imposing a disqualification retrospectively unless Parliament has clearly stated
that to be its intention.” But this old and well-known principle is more nuanced
than his bald statement of it suggests, and it is in this way that his application of it
to the meaning of Article 31(2) becomes questionable.
The first thing to note is that the retrospectivity rule must not be overstated. As
the legal theorist, Lon L. Fuller noted in his The Morality of Law(1969), “If every
time a man relied on existing law in arranging his affairs, he were made secure
against any change in legal rules, the whole body of our law would be ossified
forever” (p.60, cited with approval by the UK Supreme Court in the recent
constitutional case of AXA General Insurance Ltd v The Lord Advocate and
Others[2011] UKSC 46 at [120]). This is all the more important in relation to
constitutional change. Of course, most constitutions including our own impose
procedural constraints on constitutional amendments, and some like Germany
and India also impose absolute substantive limits on the scope of constitutional
change based on various conceptions of the general social good. But if a
constitutional change, motivated by constitutionalist values, to impose
presidential term limits were to be frustrated by a theory of retrospectivity about
the rights of one or two former Presidents, then that would surely be an
inappropriate and perverse misapplication of the principle.
Why this is a misapplication of the rule in the particular circumstances with which
we are concerned here becomes clearer when we consider the nature of the rule
more closely. Dr Jayawickrama is correct in implying that the protection of
individual rights is one of the rationales for the retrospectivity rule. It would be an
infringement of liberty if legislatures were allowed to retrospectively remove or
limit rights, to impose disqualifications, or criminalise acts that were not criminal
at the time they were committed (the prohibition of retrospective criminal
liability is a fundamental right under the 1978 Constitution: Article 13(6) and
provisos). As Bennionstates: “The essential idea of a legal system is that current
law should govern current activities. If we do something today, we feel that the
law applying to it should be the law in force today, not tomorrow’s backward
adjustment of it” (p.181). But the statement of the principle in this essential form
does not reveal the full story of how it is applied judicially. The courts’ approach is
well illustrated in the following passage:
It is not simply a question of classifying an enactment as retrospective or not
retrospective. Rather it may well be a matter of degree – the greater the
unfairness, the more it is to be expected that Parliament will make it clear if that
is intended. (Secretary of State for Social Security v Tunnicliffe[1991] 2 All ER 712
at 724 per Staughton LJ)
This view was approved in the House of Lords by Lord Mustill in L’Office Cherifien
des Phosphates v Yamashita-Shinnihon Steamship Co Ltd[1994] 1 All ER 20 at 29:
I must own to reservations about the reliability of generalised presumptions and
maxims when engaged in the task of finding out what Parliament intended by a
particular form of words, for they too readily confine the courts to a perspective
which treats all statutes, and all situations to which they apply, as if they were the
same. This is misleading, for the basis of the rule is no more than simple fairness,
which ought to be the basis of every legal rule.
In discussing Lord Mustill’s judgment, Cross on Statutory Interpretation (3rdEd.,
1995) states:
For him, the correct approach was to weigh the various factors, such as the value
of the rights, the unfairness of adversely affecting those rights, and the clarity of
the statutory language, before answering the question ‘whether the
consequences of reading the statute with the suggested degree of retrospectivity
is so unfair that the words used by Parliament cannot have been intended to
mean what they might appear to say’ (p.188)
What all this tells us, in short, is that the rule is flexible and competing values are
weighed by the courts in applying it appropriately to the circumstances of each
case; in no sense is it a rule of rigid application admitting of binary conclusions
only. When the rule is applied in this way to the situation under discussion, we
find that the purported rights that Dr Jayawickrama is so concerned to protect are
not of an order that merits a rigid and undiscriminating application of the rule.
That is, we would not be setting out to protect the general interests of society as
a whole, or even the rights of a substantial section of citizens, if we are to hold
that Article 31(2) cannot have retrospective effect, but the political rights of a
very small group of individuals who have been twice elected to the presidency.
That number currently is two persons – Mrs Kumaratunga and Mr Rajapaksa – out
of a population of 20,359,439 Sri Lankans, and it is not ever likely to be more than
a handful of persons. Not only is the number of affected individuals infinitesimal,
but the persons concerned are remarkably privileged in having enjoyed, for a
decade or more, the highest political office in the land, which, at the time they
held it, was “the fount of all power and patronage” in Dr Jayawickrama’s words.
It is therefore ludicrous to argue that the application of one of the most
important principles of power limitation in a presidential state should be
abridged, simply to protect the right of ex-Presidents to run for office in
perpetuity. What sort of constitutional claim can hold the democratic wellbeing of
more than 20 million citizens hostage to the purported rights of two people? In
these circumstances, it is little wonder Parliament, and the drafters of the
Nineteenth Amendment, felt no necessity whatsoever to affirm the retrospective
effect of Article 31(2) by the express words that Dr Jayawickrama demands. The
balance is so weighted in favour of retrospectivity, and the intention of the
legislature so apparent, in the restoration (not the introduction) of Article 31(2) to
our constitutional scheme, that express words would be utterly superfluous.
I described Dr Jayawickrama’s method at the outset as excessively legalistic.
There are many juristic variants of legalism, but for our purposes what is
important to highlight about the analytical approach that underpins his article is
the assumption that the law is objective, determinate, and comprehensive, and
that it can provide answers to any and every dispute without ever having to draw
on extra-legal sources. In this instance, thus, Dr Jayawickrama asks us believe that
the text of the constitution together with established principles of positive law
(i.e., the rule against retrospectivity) say everything we need to know about our
constitutional system. I eschew this approach almost entirely, not only because I
think the law cannot be made sense of without recourse to meta-constitutional
normative principles and public policy considerations, but more fundamentally,
without quite involved excursions into the history and culture of society (a type
and method of constitutional enquiry that legalists, for more-or-less good
reasons, are repelled by). While we do not need extra-legal historical or cultural
enquiries for the purposes of this discussion, we certainly do need a certain
‘normativism’ as defined by Jeffrey Goldsworthy in his chapter on ‘Constitutional
Interpretation’ in the Oxford Handbook of Comparative Constitutional Law(2012):
“a holistic conception of a constitution as more than the sum of its written
provisions: as a normative structure whose provisions are, either explicitly or
implicitly, based on deeper principles, and ultimately on abstract principles of
political morality that are the deepest sources of its authority” (p.691). And it is
also in this sense that the task of constitutional construction is distinct from
statutory interpretation simpliciter. As Bindra’s Interpretation of Statutes(8thEd.,
1998) says,
[a] democratic constitution cannot be interpreted in a narrow and pedantic (in
the sense of strictly literal) sense. It is the basic and cardinal principle of
interpretation of a democratic constitution that it is interpreted to foster, develop
and enrich democratic institutions. To interpret a democratic constitution so as to
squeeze the democratic institutions of their life giving essence is to deny to the
people or a section thereof the full benefit of the institutions which they have
established for their benefit. (p.871)
Dr Jayawickrama’s argument does not pay adequate heed to these considerations
of constitutional construal, understood as a distinct and special category of
textual interpretation, although it is not that his argument is entirely devoid of
any deeper normative content beyond the principle of legal policy embodied in
the retrospectivity rule. There is a certain theory of democracy unlimited by
constitutionalism that underpins observations like “a citizen’s right to be
nominated to stand for election and to be elected.” But it is a perspective on
democracy that is both profoundly shallow and deeply problematic. One of the
best (or worst) expositions of this type of approach is in the parliamentary speech
of Professor G.L. Peiris MP, the then Minister of External Affairs, defending the
Eighteenth Amendment Bill. In repealing Article 31(2), he argued,
What we are doing is giving the people of Sri Lanka the opportunity of electing
the candidate of their choice. There is no question of extending the term of office
of any particular President. To our mind, Sir, that is an enlargement; a
strengthening of the franchise of the people of this country. It is not a restriction;
it is not a curtailment of the franchise, but precisely the opposite of that. What is
wrong in allowing a person to be elected a third time if that is the declared wish
of the sovereign people of this land? That is all we are doing; we are paving the
way for the sovereign electorate of this country to exercise their freedom of
choice in a manner that is not trammelled or restricted by the law. (Parliamentary
Debates, 8thSeptember 2010: Col.281)
This anaemic and procedural conception of democracy is bereft of any
constitutional values despite the disingenuous invocation of popular sovereignty
and the freedom of choice. There is no appreciation in such a view that
democracy is not only a political procedure but also, crucially, a substantive
statement of the good life embodying indispensable counter-majoritarian norms
– for example, that all political power and legal authority must be limited by law,
that public power must not be excessively personalised, and that political
accountability in a republican democracy demands rotation of governments – that
serve as safeguards against elective tyranny which are denuded in presidential
systems without term limits. Term limits are thus found in all established
presidential democracies, and rejected, or observed in the breach, in weak
democracies with monarchical presidencies.
The rationale for term limits has been a concern for political and constitutional
theory from the time of the ancients. Aristotle identified as a key feature of
democracy that no man should hold the same office twice. The cursus honorumin
the constitution of the Roman Republic all had elaborate rules concerning re-
election and term limits. In our own tradition, theDasa Raja Dhammaof
the jatakas, clearly reflects the principle of individual self-sacrifice (‘pariccaga’) for
the good of the people. In a speech written for George Washington by James
Madison, it was said that the “rotation in office” that comes with term limits
would “…accord with the republican spirit of our Constitution, and the ideas of
liberty and safety entertained by the people.”Although he did not eventually
follow his own advice, Simon Bolivar argued, “Nothing is more perilous than to
permit one citizen to retain power for an extended period. The people become
accustomed to obeying him, and he forms the habit of commanding them; herein
lie the origins of usurpation and tyranny … Our citizens must with good reason
learn to fear lest the magistrate who has governed them long will govern them
forever.” Bolivar might as well have been describing the predicament we faced
after the Eighteenth Amendment was pushed through by the Rajapaksa regime.
To these axiomatic republican norms must be added the tenets of a good political
culture, chief among which is the proposition that responsive elected
representatives must carry out promises in good faith. The reform of the
executive presidency including through the reintroduction of term limits was the
reason that Maithripala Sirisena was elected in 2015. For his first constitutional
initiative to do anything other than that would have been a gross betrayal of the
people’s trust. Moreover, as President Sirisena, opening the debate on the second
reading of the Nineteenth Amendment Bill reminded Parliament, not only his own
platform in 2015, but from 1994 every presidential candidate’s manifesto –
including the three manifestos of Mahinda Rajapaksa in 2005, 2010, and 2015 –
has promised reforms to cut back the powers of the executive presidency
(Parliamentary Debates, 27thApril 2015: Col.513). There has thus been a
demonstrable and consistent social consensus on these issues and it is only the
deeply problematic character of our political culture that has enabled those
mandated by the electorate to implement constitutional change to abandon
reform without any accountability. This is not a question we need to explore at
more length here, but these observations are more than sufficient to underscore
the point that, in contrast to the view presented by Dr Jayawickrama, the
restoration of term limits is not some sudden and illegitimate imposition from
above, but a measure for which there are both sound normative reasons of
compelling force as well as an empirical reality of social consensus.
The final point I wish to make is easily made and it relates to the most astonishing
and least persuasive aspect of Dr Jayawickrama’s article. He goes to considerable
pains to list the changes that cumulatively mean, in his view, that “The office of
President established by the 19thAmendment is fundamentally different from its
predecessor.” But this is a highly idiosyncratic conclusion that no scholar with
even a passing familiarity with the voluminous politics and law literature on
comparative government would arrive at, it being already established that his
view militates against what most informed Sri Lankans thought had happened to
the executive presidency after the Nineteenth Amendment.
We can agree that the changes to the institutional form of executive power made
by the Nineteenth Amendment were substantial, and that it restored or
introduced a range of temporal, procedural, substantive, and institutional checks
on the office of the President. But there is no proper basis whatsoever to
conclude from this that the “office of President established under the
19thAmendment is now more in the nature of a constitutional Head of State.”
Again, I do not understand how Dr Jayawickrama squares this theory with the
reality of presidential power we have seen President Sirisena exercise since May
2015. It may not be the Rajapaksa-style hyper-presidentialism that it was our
collective misfortune to experience under the Eighteenth Amendment, but no
one can with a straight face maintain the contention that the presidency is now a
mere figurehead. The President continues to enjoy an independent democratic
legitimacy by virtue of direct state-wide election, which he deploys in exercising
his powers as “the Head of the State, the Head of the Executive and of the
Government, and the Commander-in-Chief of the Armed Forces” (Article 30 (1))
and as a member and Head of the Cabinet of Ministers (Article 42 (3)), and while
he is responsible to Parliament (Article 33A, formerly Article 42) he is not
answerable to it, and can be removed only by the special procedure of
impeachment. I can go on, but the point is perhaps sufficiently made.
The transitional provision in Section 49 of the Nineteenth Amendment Act was
not necessitated because the offices which Maithripala Sirisena and Ranil
Wickremesinghe “held since January 2015 had ceased to exist”, but because, out
of an abundance of caution, the drafters were seeking to ensure that the
incumbents in the offices of President and Prime Minister at the time the
Nineteenth Amendment came into force were made subject to the reforms done
to their offices. In other words, it was to guard against the possibility of a
Rajapaksa-style usurpation attempt by these two individuals to perpetuate any
Eighteenth Amendment powers by claiming that they were originally elected or
appointed before the Nineteenth Amendment.
The 1978 Constitution, before the Eighteenth Amendment and after the
Nineteenth Amendment, remains a classic representation of Gaullist semi-
presidentialism. The Nineteenth Amendment was clearly a significant
recalibration of the institutional balance of power in the state, so much so that it
can be plausibly characterised as transforming the 1978 Constitution from a
‘president-parliamentary’ to a ‘premier-presidential’ model of semi-
presidentialism (to use the canonical typology of semi-presidential sub-types
developed by Matthew Shugart and John Carey). One of the foremost academic
authorities in this area, Robert Elgie, defines the essence of semi-presidentialism
as “where a constitution includes a popularly elected fixed-term president and a
prime minister and cabinet who are collectively responsible to the legislature.”
That is the structure of government that the 1978 Constitution established,
except that the principle of the fixed presidential term was tampered with by the
Third Amendment in 1982 when it allowed the incumbent President to alter the
timing of his re-election. The Eighteenth Amendment in 2010 was a much more
violent and pernicious attack on the conceptual framework of semi-
presidentialism when it, among other things, abolished the two-term limit
altogether, and moved Sri Lanka in the direction of the populist, authoritarian,
and monarchical presidential states of Africa, Latin America, and Central Asia. In
2015, the Sri Lankan people decisively rejected this trajectory of constitutional
development, and mandated the Nineteenth Amendment which cured the
defects created by both the Third and Eighteenth Amendments by restoring the
fixed-term principle, and thereby returning the 1978 Constitution to consistency
with the classical model of semi-presidentialism. To state otherwise in the face of
this reality is to engage in the sort of sophistic dissimulation that gives lawyers a
bad name everywhere.
We can summarise the foregoing discussion in the following terms. Term limits
and disqualifications are a standard feature of presidential and semi-presidential
systems, which serve to protect central principles of liberal constitutionalism and
republican democracy. The 1978 Constitution also contained this feature until it
was done away with by the aberrant and anti-democratic Eighteenth Amendment
in 2010. The people mandated a reversal of this pernicious attack on
constitutional democracy at the first opportunity they had in the presidential
election of 2015. In furtherance of this mandate, the Nineteenth Amendment
restored the two-term limit and once again made the constitution more
consistent with the semi-presidential model of democracy. There can be no
doubt, when the text of the Nineteenth Amendment, the political context of its
enactment, the democratic principles that underpin the constitution, and the
legislative intent of Parliament, are all weighed into the analysis that the
restoration of the two-term limit was intended to apply both retrospectively and
into the future. Due to the failure to take into account the political and
constitutional context, the normative and institutional requirements of the semi-
presidential model in particular and constitutionalism more generally, and
crucially, in misapplying the retrospectivity rule, Dr Jayawickrama’s article offers
no persuasive counterpoint to this conclusion. A legal case as to the disapplication
of the disqualification in Article 31(2) to the two individuals who have been twice
elected to the office of President has therefore not been made out. Consequently,
neither Mahinda Rajapaksa nor Chandrika Kumaratunga have any right or
entitlement to stand for presidential office again.
I would like to conclude, if I may, on a personal note. Notwithstanding the
controversies surrounding his tenure at the Ministry of Justice under Felix Dias
Bandaranaike – in many ways the pioneer of constitutional manipulation in post-
colonial Sri Lankan politics – Dr Nihal Jayawickrama is an eminent lawyer and
scholar with over half a century of service to the law in Sri Lanka and abroad. As a
gracious and erudite contributor to volumes on Sri Lankan constitutional law I
have edited in the past, I have valued his acquaintance, and his genial company
whenever we happen to be in the same country at the same time. I have no doubt
he was trying to make a useful contribution to public debate when he wrote the
article I have critiqued here. While it is something of a pity that I must disagree
with him so vehemently on this occasion, I am sure he will be the first to
recognise that this type of critical dialogue is one of the foremost responsibilities
of the academic profession that we share as scholars of public law.
Editor’s Note: Also read “The 19th amendment and the future of Sri Lanka” and
“Defeating the Saboteurs: The 19th amendment”
Posted by Thavam