Any opinion expressed by the Supreme Court after due consideration in private will not be binding on anyone since it will not be a judgment or a determination of the court. If the President were to act on such an opinion, and defer his assumption of office, it could well be argued that the office of President had become vacant by his failure to assume office within the period prescribed by the Constitution. In fact, the validity of every executive act performed by his Government could be challenged on the same ground.

The President is required by the Constitution to "assume office" within two weeks from the date of commencement of his term of office. The President "assumes office" by taking an oath or making an affirmation before a Judge of the Supreme Court. In this instance, to determine when the President’s second term will commence, it is necessary to ascertain when his first term will end, because it is upon the end of the first term that the second term will commence.

The Constitution prescribes three ways in which a President may be elected. The first is at the regular election to be held shortly before the six-year term of office of the incumbent President ends. The second is an election by Parliament from among its members whenever the office of President becomes vacant before the end of the six-year term. The third is the election provided for by the Third Amendment: after he has served four years of his first term, the President may, by proclamation, "declare his intention of appealing to the people for a mandate to hold office, by election, for a further term."

The Third Amendment provides in Article 31(3A)(b) that if the President seeking re-election dies before the close of the poll, the proclamation is deemed to have been revoked and the election is deemed to be cancelled. The vacancy thus created in the office of President is filled by Parliament for the unexpired period of the term of office of the deceased President. This means that while the poll is in progress, the President’s first term of office continues.

If, however, the President dies after the close of the poll, the consequences are dramatically different. If the result has not been declared, Article 31(3A)(c) requires the Commissioner of Elections to proceed with the count and ascertain the result. If the person entitled to be declared elected is the deceased President, the Commissioner is required not to declare that result, but to take a fresh poll for the election of the President. The vacancy in the office of the President will not be filled by Parliament, but by a national election, notwithstanding that the unexpired period of the deceased President’s term of office may well have extended to two further years. This is because the first term of the President is deemed to have ended with the close of the poll and the conclusion of the count. This is reaffirmed by Article 31(3A)(d) which provides that if the incumbent President is defeated, the term of office of the victor shall commence on the date on which the result is declared, and not on some later date on which the President’s first term of office would ordinarily have ended.

These three provisions in the Constitution very clearly and unequivocally indicate that the conclusion of the poll and the declaration of the result is the defining moment when the first term of an incumbent President who has sought premature re-election ends. Thereafter, the President has two weeks within which to assume office.

The Third Amendment was a convoluted piece of legislation that was initially drafted by President Jayewardene’s personal legal advisers. It was designed to meet the particular exigencies of the time, namely, the fact that Mrs. Bandaranaike, his principal political opponent, had recently been subjected to civic disabilities and was therefore prevented from contesting a presidential election. Amendments made at the committee stage in Parliament and President Jayewardene’s desire to retain 4th February – the anniversary of the day on which Ceylon became a self-governing dominion in 1948 and the day on which he first assumed the office of President in 1978 – as the date of commencement of his second term as well, led to further confusion. These factors probably account for the contradictory and sometimes incoherent provisions in the Third Amendment.

An example is Article 31(3A)(d)(i) read with subparagraph (f) of that same Article which provides that the second term of a re-elected President will commence on a date after that election which corresponds to the date on which his first term commenced, i.e. 4th February 1978 thereby implying that his first term did not end upon the completion of the poll and the declaration of the result. On the other hand, Article 31(3A)(d)(ii) provides that the successful presidential challenger will commence his term of office on the date on which the result of the election is declared, thereby implying that the first term had ended on that day. The day on which the first term ends cannot be determined by who had won or lost in that poll, but by a more certain event, namely the close of the poll and the declaration of the result.

When such time-specific provisions are disregarded as being limited in application to that first election held in 1982, the remaining provisions lead inexorably to only one conclusion, namely, that the first term of an incumbent President who seeks re-election after completing four years in office ends at the conclusion of that poll and the declaration of the result. That is also the moment in time when his second term commences.

(The writer is a Professor of Law and former secretary of Justice)