by D.B.S. Jeyaraj
Some very interesting questions were raised by the reader Nalaka at comment #147 made in response to my article “The magic behind the Mahinda Rajapakse victory“.
I forwarded them to two experts at Centre for Policy Alternatives (CPA) in Colombo for their opinion. Both Asanga Welikala and Rohan Edirisinghe were kind enough to respond and I thank them for that. Incidently both were called upon to testify before courts on this issue of the President’s second term .
I am reproducing reader Nalaka’s original post and the responses by Asanga and Rohan here for the benefit of readers who may be interested in this issue.
Here they are:
147. Nalaka | February 2nd, 2010 at 10:38 pm
The recent advisory opinion issued by the SC regarding the commencement of MR’s second term gives rise to several legal issues.
1.This is only a “advisory opinion” not a “judgment” and has no legal validity.
2.As per the constitution an advisory opinion can be sought from SC only by a serving president. As MR has not taken oath for his second term he has no legal authority to sought the opinion from SC.
3.The CJ & majority of the judges that issued this opinion were appointed in violation of the constitution in the absence of a Constitutional council.
4.Therefore the “judgment” issued by the former CJ in response to the fundamental rights petition of Ven.Omalpe Sobitha still stands. According to this verdict a presidents tenure commences from the date election results are declared. That is why CBK had to go home and MR got the presidency in 2005. Otherwise CBK could have occupied that post till Nov 2006.
5.Therefore if we go according to the recent advisory opinion of the SC, MR’s 1st term becomes invalid.
6. According to the constitution a president should take oaths within 2 weeks of his election. As the former CJ’s judgment remains valid, if MR postpones his oath his election results become invalid from 10th Feb 2010. Therefore the office of the Sri Lankan president becomes vacant from 11th February 2010.
My answers as follows; Rohan’s may differ:
1. This is an interesting issue that Rohan and I discussed after our submissions-someone else brought it up also. I am not entirely persuaded that the argument that an Advisory Opinion has no legal validity can be accepted with total certainty, although there is a live question as to what would prevail between a judgment proper and an Advisory Opinion if they are in conflict. Note also that the government treated the SC’s Advisory Opinion to the effect that the Sri Lankan Constitution and law was in compliance with the ICCPR (for the purposes of the GSP+ extension) in 2008 delivered to the President under the same procedure as binding and conclusive. We have not yet seen yesterday’s Advisory Opinion (if we ever will), so we don’t know how the court dealt with this (or if it did at all; but we certainly raised it as an issue in Rohan’s submissions to Court).
2. This argument is almost certainly wrong. MR’s first term had not concluded at the time he made the reference-as confirmed by the Advisory Opinion in line with the AG’s submission, our own, as well as the plain meaning of the provisions of the Third Amendment.
3. True that the CJ as well as certain other Justices of the SC have been not been appointed under the terms of the Seventeenth Amendment. Thus while we can agree that these appointments are unconstitutional, insisting on such a point would be akin to denying the existence of the SC.
4. Once again, we have not seen yesterday’s Advisory Opinion, so we have no way of knowing how the court has dealt with the decision in Omalpe’s case. We suspect they might just have ignored it. However, while Sarath Silva CJ’s decision in Omalpe’s case can be welcomed from the perspective of democratic principle and Westminster convention, it patently flies in the face of the constitutional text of the Third Amendment. The resultant position is the difficult one of preferring whether to uphold the text of the Constitution (given the provenance of JR’s Third Amendment, clearly anti-democratic and self-serving, but it is the Constitution nevertheless) or whether to ignore the text and uphold the democratic principle that the power/privilege given to the incumbent of calling an early (re)election at a time politically advantageous to him, must be countervailed with the requirement that he forfeits the remainder of his (first) term if re-elected (but the Constitution makes an express departure from this). Compounding this of course is Sarath’s questionable motives as well as questionable reasoning – he ignored the Third Amendment by unpersuasively arguing that the text was hopelessly ambiguous and hence devoid of meaning, so as to contrive the basis for his conclusion. I don’t agree with that, and while the relevant provision is convoluted, it is not impossible to interpret its meaning.
5. I am not sure what is meant here, but if I understand it correctly, it is wrong.
6. This conclusion is dependent on whether we can accept the argument being made by the person making the comment. For the reasons I have mentioned above, I do not agree with him.
I agree with Asanga’s comments. Why didn’t this person make these submissions on Monday before the Supreme Court?
The absence of anyone who would defend the Sarath Silva interpretation in Omalpe Sobitha v Dayananda Dissanayake was significant (I reminded the court of its existence and urged them to distinguish, refuse to follow, or overrule it) and we are indeed lucky that the court did not follow the interpretation advocated by Nihal Jayamanne and DS Wijesinghe who represented Sarath Kongahage and Mendis Rohanadeera respectively, that MR’s second term begins in Nov 2011.
Points 2 and 5 have no foundation whatsoever.
The other points are interesting.
DBS Jeyaraj can be reached at firstname.lastname@example.org