Three and a half years after he was ousted from power, former President Mahinda Rajapaksa was the focus of attention last week. Although some of the reasons for the publicity Rajapaksa generated may not have been to his liking, other events may have reignited presidential ambitions for the country’s fifth Executive President.
Rajapaksa hit the headlines when officers of the Criminal Investigation Department (CID) recorded a statement from him last Friday regarding the abduction and assault of the then Deputy Editor of The Nation, Keith Noyahr.
Noyahr was abducted and assaulted on May 22, 2008 in Dehiwala. In the hours after his abduction, Karu Jayasuriya, who was the Minister of Public Administration and Home Affairs in the Rajapaksa led government, was alerted by Noyahr’s colleagues. Jayasuriya telephoned Rajapaksa to inform him. Hours later Noyahr was released by his abductors, battered and bruised but alive to tell the tale.
Noyahr has since left the country and is now domiciled in Australia. However, investigators have pieced together the jigsaw relating to his disappearance and visited Australia to interview the journalist. Several army personnel including former Military Intelligence Director and Chief of Staff of the Army, Major General (Retired) Amal Karunasekara are in remand custody over Noyahr’s abduction and assault.
Previously, investigators had recorded Speaker Karu Jayasuriya’s statement regarding his intervention. The interview with Rajapaksa was a natural follow-up on that. The CID forwarded Rajapaksa’s statement to the Mount Lavinia Magistrate’s Court on Monday.
Although Rajapaksa was extended the courtesies befitting a former President with the CID visiting him at his official residence rather than vice versa and was informed at the outset that he was not being treated as a suspect, he chose to politicise the investigation. Emerging from the interview he claimed that the government was engaged in a political witch-hunt against him.
“The CID must have been instigated by government leaders to record my statement. The government is trying to achieve its political ends. This is an event which shows that the government is vindictive”, Rajapaksa alleged. Rajapaksa, who rarely loses his composure, was rattled enough to lash out at his private secretary Udith Lokubandara, for bringing him to face the media after the CID interview.
As for the interview itself, Rajapaksa said he had told the CID that he could not recollect Jayasuriya’s telephone call as it happened over ten years ago and also because many ministers call him from time to time. Former minister G. L. Peiris and former Chief Justice Sarath Silva were with Rajapaksa during the interview.
If Rajapaksa was unhappy at this turn of events, another development has led to a glimmer of hope within the ranks of the Joint Opposition (JO). That comes in the form of legal opinion that he is not debarred from contesting the Presidency for a third time.
The popular perception was that the introduction of the 19th Amendment to the Constitution prevented Rajapaksa from running for President again. That is because Section 4 of the 19th Amendment decreed that “no person who has been twice elected to the office of President by the people, shall be qualified thereafter to be elected to such office by the people”. This section amended Article 31 of the Constitution.
It will be recalled that the Constitution, when it was first introduced in 1978 did have a disqualification imposed on individuals who had held the office for two terms. However, this was repealed through the 18th Amendment passed by a two-thirds majority in Parliament when Rajapaksa was President. It was widely acknowledged that it was a move to facilitate Rajapaksa running for President a third time, which he did in 2015 and lost.
There is no dispute that the 19th Amendment bars individuals from assuming office more than twice. However, some legal experts are of the opinion that the amendment is prospective and cannot be applied retrospectively which means that the two-term limit applies only after 2015, when the 19th Amendment was introduced.
Although that does not appear to be the spirit of the 19th Amendment, there does appear to be some room for debate on this issue. That is because Section 4 of 19th Amendment, which restores the two-term limit, does not specify the date from which it is applicable.
However, with regard to the entire 19th Amendment, Section 1(2) of the 19th Amendment states that: “The provisions of this Act other than the provisions of section 9 (in so far it relates to paragraph  of Article 46 of the Constitution of the Democratic Socialist Republic of Sri Lanka) and the provisions of section 15 shall come into force on the date on which this Act comes into operation”.
Since the 19th Amendment was certified into law on May 15, 2015, some legal experts contend that the two-term limit would not apply to Rajapaksa as well as the only other ex-President, Chandrika Bandaranaike Kumaratunga. Kumaratunga, of course, is not interested in running again for high office.
Among the legal experts reportedly supporting this view are former Chief Justice Sarath Silva and former Justice Minister and Professor of Law, G. L. Peiris who is also the nominal head of the Sri Lanka Podujana Party (SLPP). Supporting this view in the media was Dr. Nihal Jayawickrama, the controversial former Secretary to the Ministry of Justice in Sirima Bandaranaike’s 1970-77 government.
Peiris was to announce on Monday that the SLPP would soon move the District Court on this issue. Peiris expects that court to then refer the matter to the Supreme Court. When this plan was first suggested to Rajapaksa, he had been dismissive of the idea saying he had no appetite to canvass the issue in courts. However, it has been pointed that any citizen could file a fundamental rights application in the Supreme Court which would then be required to provide an interpretation of the Constitution.
However, others such as Higher Education and Cultural Affairs Minister Dr Wijeyadasa Rajapakshe have maintained that only the President could consult the Supreme Court. Other such as United National Party (UNP) parliamentarian Thushara Indunil have noted that the Supreme Court recently decided that President Maithripala Sirisena’s term of office was five years- though that too was a measure introduced in the 19th Amendment.
Next presidential election
The political implications of this issue are immense. That the JO has inquired into this issue and has arrived at this conclusion is indicative of the dilemma they face in finding a candidate for the 2020 presidential election. Although Gotabhaya Rajapaksa is the frontrunner among potential JO nominees, it was no secret that there is also significant opposition to his candidature, with the likes of Vasudeva Nanayakkara and Kumar Welgama speaking out against it publicly.
Gotabhaya Rajapaksa himself has other hurdles to overcome. He remains a United States citizen and it is unclear whether he could renounce it within a short period of time. There are also many court cases where his role has come under scrutiny. In that sense, there is a school of thought within the JO that while Gotabhaya Rajapaksa had arguably the highest profile apart from Mahinda Rajapaksa, his candidacy also had the highest element of risk.
In such circumstances, if Mahinda Rajapaksa could contest again, that would be ideal for the JO. Clearly, Rajapaksa is the most marketable opposition politician in the country. However, in trying to pursue legal avenues to assess whether Rajapaksa can run for President again, the JO and the SLPP are also playing with a double-edged sword: if the campaign to re-instate Mahinda Rajapaksa as candidate fails in court, the JO would be losing valuable time and resources in promoting the eventual candidate.
For that reason, it is likely that the JO will move to have the matter scrutinised by the Supreme Court sooner rather than later. It will be a verdict that will, for obvious reasons, shape the nature and perhaps the outcome of the next presidential election.