Following United National Party (UNP) General Secretary Palitha Rangebandara’s suggestion to extend the President’s term for two years without elections, constitutional and legal experts have voiced strident criticism, pointing out the undemocratic aspects of such a measure. 

Rangebandara recently presented a proposal, which came under fire from all quarters, to postpone both the Presidential and General Elections by a span of two years, emphasising that if circumstances warranted, this proposal could be formally submitted to Parliament, paving the way for a referendum. 

However, speaking to The Sunday Morning, President’s Counsel Dr. Jayampathy Wickramaratne strongly denounced the possibility, stating that neither the incumbent President nor Parliament could extend their own terms through a referendum. 

He stressed that a referendum could not even be considered, explaining: “This President was not elected; he came through the back door. He doesn’t even have the power to call for an early election since a successor president cannot hold an election early.”

Outlining the constitutional provisions in this respect, he said: “Rangebandara suggested that the term of Parliament and the President be increased by two years, i.e. up to seven years. The Constitution clearly states that the term of parliament or the president cannot be extended beyond six years without a referendum.

“That does not mean that this Parliament and the President can extend their own terms; the president and parliament are now elected for five years, so people voted for a five-year parliament and a president. Therefore, this Parliament cannot extend its own life.”

He further noted that if this were permitted, the incumbent President and Parliament could indefinitely extend their terms without elections: “Otherwise, they would be able to extend their term every five years without having elections as long as they have a two-thirds majority and just 50% plus one more voter agreeing.”

Spirit of the Constitution

According to Dr. Wickramaratne, such a process would also be governed by constitutional morality, which demands that the spirit of the Constitution not be undermined. 

He said: “Although the Constitution says a referendum is needed, in my view, even with a referendum, you cannot extend the life of an existing Parliament and a president in office because it goes against the spirit of the Constitution.” 

The principle of constitutional morality, which is a concept that is now being developed and which has gained ground in India as well, dictates that simply having a two-thirds majority and 50% plus one more voter does not imply the absence of all limitations. Rather, this principle entails that not only the words of the Constitution but also the spirit of the Constitution are considered. 

Dr. Wickramaratne explained that this spirit could be found in the preamble to the Constitution, which referred to immutable republican principles of representative democracy, which assured to all peoples freedom, equality, justice, fundamental rights, and the independence of the Judiciary as the intangible heritage that guaranteed the dignity and well-being of succeeding generations. 

Accordingly, as per the principle of constitutional morality, he contended that it was not possible to go against the spirit of the Constitution simply because a two-thirds majority of Parliament supported an idea and 50% plus one of the people agreed.  

1982 Referendum

Sri Lanka has previous experience with referendums, when the 1982 National Referendum extended the life of Parliament by six years. President J.R. Jayewardene, faced with the possibility of his ruling UNP losing its supermajority in Parliament in General Elections, proposed a referendum to extend the life of Parliament. 

Referring to the 1982 Referendum as the “worst blot in Sri Lankan electoral history,” Dr. Wickramaratne said: “In 1982, when the Fourth Amendment of the Constitution was brought, it went to the Supreme Court before a seven-member judge bench. Four of them said that since the Cabinet of Ministers had certified that this bill would be passed by a two-thirds majority and approved by the people at a referendum, they had no jurisdiction to even look at the bill. However, three judges disagreed, in what was a very close majority.”

Today, however, circumstances have changed. “Constitutional law in this country has developed by leaps and bounds. Now, any arbitrary action on the part of the Legislature, the Executive, or even the Judiciary is not allowed. Therefore, you cannot go against the spirit of the Constitution since that would be an arbitrary action. You can’t do anything and everything.”

University of Colombo Faculty of Law Senior Lecturer Prof. A. Sarveswaran, who was part of the expert committee appointed to draft a new constitution during former President Gotabaya Rajapaksa’s regime, pointed out that while 54% of the people had voted in favour of extending the life of Parliament at the 1982 Referendum, a majority of Tamils in the north and east had voted against it. He therefore observed that a referendum may not always correctly reflect the expectations of the people of the country. 

Undemocratic moves

Former President of the Bar Association of Sri Lanka, President’s Counsel Saliya Pieris was similarly critical of a potential referendum, terming it undemocratic. He stressed that since the incumbent President had no popular mandate, seeking an extension of his term of office would be highly inappropriate and violate democratic norms. 

He firstly observed that Sri Lanka’s historical experience of referendums had been unfavourable, pointing out that the four years that followed the 1982 Referendum had been disastrous. “Secondly, it is unnecessary and would be contrary to democratic norms,” he told The Sunday Morning. 

Moreover, he specified that while it was technically possible to extend the term of the President in terms of the Constitution, whether it could be done only for the term of this particular President was debatable. 

Writing on his social media, he said: “The President’s term can only be extended by amending the Constitution. In terms of Article 83(b) of the Constitution, such an amendment requires a two-thirds majority in Parliament (150 members voting for) and then followed by the approval of the people at a referendum. Without a two-thirds majority, such a bill cannot even go for a referendum.”

Technicalities and ethics 

Meanwhile, Prof. Sarveswaran pointed out that when it came to extending the period of the president or Parliament, it could not simply be done under Article 86, but instead under Article 83(b) and passed by Parliament with a two-thirds majority and finally put to a referendum.  

“Article 86 of the Constitution provides that the president can go for a referendum on a matter of national importance; there the president can directly go for a referendum bypassing Parliament – the two-thirds majority in Parliament is not needed for a referendum under Article 86.

“However, when it comes to the period of the president and Parliament, Article 30(2) of the Constitution provides that the period of the president is five years while Article 62(2) provides that the period of Parliament is five years. 

“Article 83(b) provides that any amendment to these articles, for instance to extend the period of the president or Parliament, should be passed by Parliament with two-thirds of the total members, including absent members. Thereafter it should be put to a referendum. 

“The scope of Article 86 is narrowed due to Article 83; when it comes to the extension of the term of the president or Parliament, if the president so wishes, he can go for a referendum under Article 86. However, the Constitution should later be amended to extend the period. For that amendment, once again the bill should be passed with two-thirds and put to a referendum.”

He further noted that since the incumbent President had been elected by parliamentarians for the remaining term of the previous president, and not directly elected by the people, it would be unethical to extend his tenure through the provisions in Article 83.

However, Prof. Sarveswaran opined that the President would not prefer to opt for a referendum, since his chances of winning a referendum were lower than those of winning a Presidential Election. 

He explained that since the vote at a referendum would be a simple yes or no, all votes by people, political parties, and democratic forces which opposed an extension of the term would collectively be counted as a vote against. 

However, in a Presidential Election, with multiple contesting candidates, the vote against the President will be divided, unlike in a referendum. Prof. Sarveswaran therefore pointed out that the President would have a greater chance of victory should he opt for a Presidential Election.  

Potential costs

Meanwhile, when asked about the potential costs of a referendum, Election Commission (EC) Chairman R.M.A.L. Rathnayake told The Sunday Morning that while it was difficult to estimate the expenses, it would amount to something similar to a typical election, since a referendum would function as an election, with all election centres operating and the election procedure being followed. 

He shared that Rs. 10 billion had been set aside for the Presidential Election, noting that a referendum could cost slightly lower. 

However, he stressed: “We have not estimated the cost required for a referendum yet, nor do we have any plans to do so. Estimations will only be undertaken if it is confirmed.”