Creating confusion about a crystal-clear Article 83 (b)

by Prof. Rajiva Wijesinha

I suppose I should not be too surprised by the varied and confused responses to the President’s latest effort to muddy the waters with regard to the need for an election within three months to choose his successor. Though I had not thought to get involved in discussion of current political issues, I am moved to offer some clarifications, which seem sorely needed.

What struck me most recently was a newspaper report that

“Sri Lanka moves to amend Constitution on presidential and parliamentary terms

The Cabinet of Ministers has given greenlit a resolution aimed at amending specific articles of the Constitution concerning the terms of office for the President and Parliament.

This decision targets articles 30 (2), 62 (2), and 83 (b) of the Constitution, which govern the duration of presidential and parliamentary terms.

Recent observations have pointed out discrepancies between the tenure of the President and the duration of parliamentary terms as stipulated in the mentioned articles.

Currently, Article 83 (b) allows for a presidential term exceeding six years, whereas the proposed amendment seeks to substitute this with a term not exceeding five years.”

The headline is misleading since the mover is the Cabinet, not Sri Lanka. The second para is misleading since Article 83 (b) does not cover the duration of terms. There is no discrepancy between the tenure of the President and the duration of parliamentary terms, which the third para claims.

These errors could spring from carelessness, but they are part and parcel of the way in which Ranil Wickremesinghe operates.

But what is most worrying is the fact the last para is completely wrong since Article 83 (b) does not allow for a presidential term exceeding six years.

The position will be clear if we look at that Article. It deals with the power of the legislature to amend the Constitution, which can be done for most articles with a two-thirds majority under Article 82 whereas 83 lays down the sections which require a referendum, too. (a) refers to some entrenched provisions which are not relevant here, but b) deals with the extension of terms of office. But I will cite (a) too in full because it includes this article, i. e., 83

83. Notwithstanding anything to the contrary in the provisions of Article 82 (a), a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 or of this Article; and (b) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80.

There is no salient inconsistency with Articles 30 and 62, which were amended in 2015 to reduce terms from six years to five. The latest argument put forward by the votaries of the President is that this article too should have been amended in 2015 to make the Constitution consistent. And, sadly, some members of the Opposition have argued that changing 6 to 5 in this article would have required a referendum, which is why it was not done.

That is to miss two points. One is that any change to this Article would have required a referendum. The second is that changing it for the purpose of the 19^th amendment would have been necessary only if the terms of the President and of Parliament were to be extended to over six years. Had the Constitution envisaged imposing stringent controls on reducing a presidential term Article 83 (b) would have stopped after Article 62 (b) or gone on to say ‘which would have altered, by shortening or by extending, the term of office of the President, or the duration of Parliament.’

So, it made sense for the article to be left as it was, without going through a referendum, since changing the articles which the 19^th Amendment did quite clearly did not require a referendum. Why then are Ranil and his agents claiming that it did? Surely, they cannot assume the Supreme Court does not understand what is very clear; the Constitution did permit reducing the term with only a two-thirds majority but required a referendum if that term was to be extended.

Rather, repeated obfuscation is the name of the game, with the hope that at some stage it would be declared that there is an inconsistency which must be removed. And, this hope will continue to be thrust on us, with case after case to confuse the public as well as the courts. But as some of us realized in passing the Amendment in 2015, there is no inconsistency at all in this case, unlike for instance with regard to the President’s power to dissolve Parliament where the Courts ruled that the amendment limiting it was the salient point.

We reduced the term of the Presidency, which is clearly permitted without a referendum, which is required only if the term is extended beyond six years. I hope the Courts will make that crystal clear, and deal firmly with those who waste their time.