How to prevent her invalidation after completing her second term of office may be considered the most sensitive problem the President faced at the beginning of her second term. It may be said that she had an exceptional plan to overcome that challenge.
That plan had to be implement- ed before the expiry of her period of office. A story that she had taken oaths again, after her public taking of oaths subsequent to the second Presidential election, had to be invented because she want- ed to extend her second term of office at a time the second term was fast coming to an end.
If the date on which she took oaths in public on her re-election (December 22, 1999) is deemed to be the date on which her second term commenced, then the next Presi- dential election has to be held in December 2005. If the date on which she is alleged to have taken oaths in secret (November 12, 2000) is considered to be the date on which her second term commenced, then the next Presidential election will have to be held in December 2006.
What appears from Mangala Samaraweera’s public reply to Prof G L Pieris’s public statement is that the government is not prepared to consider the date of oath taking after the second election as the date of commencement of the second term. Instead, the government appears to be going to consider November 12, 2000 the alleged date of the secret oath taking, as the date of commencement of the second term.
What Prof GL Pieris said was that the Presidential elec- tion must be held in December 2005 and his party is not prepared to accept the alleged secret oath taking. What Mangala Samaraweera says in reply is that everybody knows that the period of administration allowed to a Presi- dent who holds her office for two terms is 12 years, and therefore the next Presidential election will be held, not in December 2005 but in December 2006.
President Kumaratunga is not the only President who has been in office continuously for two terms. Previously J R Jayawardene too had done so. However his second Presi- dential election and the date of the second taking of oaths had the effect of reducing the 12 years of the two terms by one year. If the period of office of a President who spends two terms of office continuously is 12 years, then that rule must also have applied to President JR Jayawardene. He took his oaths for the first time on com- ing to office on February 4, 1978. So his two terms of office, amounting to 12 years, should have ended on February 4, 1990. However, his two terms ended on February 2, 1989.
What were the factors that con- tributed to reducing the 12 years of two terms by 1 year? Although he assumed office on February 4, 1978 for the first term, the second presidential election was held before the expiration of the first term of office, viz on October 21, 1982. After he won the second time, oaths were taken on February 4, 1983 in terms of the requirements of the constitution. The six years of the second term were reckoned from the date of that taking of oaths. Consequently the third Presidential election had to be held not in December 1989 but in December 1988. If a President who comes to power goes for elections before the expiry of the first term, and wins, he/ she does not have the right to the second term along with the balance of the first term. According to the provisions of the constitution, oaths have to be taken anew for the second term of office too. The six-year period of the second term is reckoned from that date of taking oaths. Accordingly, the next Presidential election is due not in December 2006 but in December 2005.
Chandrika Bandaranaike Kumaratunge fixed the date of the Presidential election for her second term not haphaz- ardly but after careful consideration. A person elected President can hold a Presidential elec- tion on any date after completing four years of the term. If he or she wins again at that Presidential election, the date of his or her taking of oaths is specified in the following manner in the constitution:
Article 31 (3A) (d) reads as follows: The person declared elected as President at an election held under this paragraph shall, if such person: 1) is the President in office, hold office for a term of six years commencing on such date in the year in which that election is held (being a date after such election) or in the succeed- ing year, as corresponds to the date on which his first term of office commenced, whichever date is earlier; or ii) is not the President in office, hold office for a term of six years, commencing on the date on which the result of the election is declared.
If President J R Jayawardene had held the Presidential election on a date subsequent to February 4, 1983 in- stead of October 21, 1982 as he did, he would have had to take his oaths on February 4, 1984 and not on February 4, 1983. President Chandrika Kumaratunge took her oaths for the first time after the second presidential election, not before November 12, but later, that is to say on December 21, 1999, because she had considered the possibility of taking oaths on November 12, 2000 for her second term of office. If that had happened, she would have got the opportunity of staying in office for the full period of 12 years of her two terms of office. If, on the other hand, the second presidential election was held on a day prior to November 12, that is on a day in October 1999, she would have had to take her oaths on November 12, 1999 in terms of the constitution. That would have reduced the period of 12 years of the two terms by one year.
However she took her oaths on December 22, 1999 in- stead of November 12, 2000, not due to any lapse on her part, but she was compelled to do so, by the particular circumstances that had arisen.
Due to her being subject to a bomb attack at the end of the election campaign there was danger to her own life. Even if that had happened after the election result had been declared and she had won, and her life had ended without her taking oaths, it would have led to a constitutional crisis and a new presidential election would have become necessary.
The legal advisors to the President had wanted to pre- vent such uncertainty and to ensure that the Peoples’ Alli- ance would retain their victory without another presidential election, in case the president died. (At that time there was the possibility for the Prime Minister of the People’s Alli- ance to become the President).
That is why she wanted to take oaths immediately on the doctrine of necessity, disregarding the provisions in the constitution. Due to that fact, if the President had died on that occasion, the advantage of that incident would go to the Peoples’ Alliance government. On the other hand, as she did not die, the President now has to suffer the conse- quent disadvantage.
However, the alleged secret oath-taking does not invali- date the public oath-taking. In terms of the constitution, her second term of office has to be reckoned from December 22, 1999, on which date she had taken her oaths in public. Any attempt to invalidate that and to validate an oath taking which is to said to have taken place in secret, will inevitably cause a great political crisis again in the country.