By

Kalana Senaratne

There was a time, especially during the latter half of his stint as Chief Justice, when one felt that anything was possible with Sarath N. Silva. For a brief moment, even his critics were confused; for some of his decisions began to irk the rulers quite severely. That shrewdest of all contemporary politicians (perhaps after President Mahinda Rajapaksa and Minister Basil Rajapaksa), is back again.

The seeming thrust of his argument is: that President Rajapaksa cannot run for a 3rd term, that the Constitution prevents him from doing so. Ever since the adoption of the 18th Amendment in September 2010, one had thought that President Rajapaksa can; for the 18th Amendment had eradicated the term-limit barrier. Silva now says, almost 4 years after the 18th Amendment was adopted, that we were wrong.

As explained to the Lankadeepa (17 August) and Daily Mirror (29 August) newspapers, Silva’s legal argument revolves largely around (the now repealed) Article 31(2) of the Constitution.

Art. 31(2) stated 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.” Silva interprets this quite understandably, to suggest that a person who has been elected twice cannot call for another Presidential election; but in doing so, he goes on to state that this ‘disqualification’ applied from the day on which President Rajapaksa was elected President for the 2nd time (i.e. 26 January 2010). So, President Rajapaksa was constitutionally prohibited (or disqualified) from repealing Art. 31(2) because at the time he did it (i.e. in September 2010) he was already well into his 2nd term. And furthermore, even though the 18th Amendment repealed Art. 31(2), Silva points out that legislation (i.e. 18th Amendment) which has retrospective effect cannot be enacted. Why? Because the above-mentioned disqualification stands; for as per Section 6 of the Interpretation Ordinance, a repeal of the law does not affect a right, liability or anything suffered under an earlier law.

There may be many views about this. However, Silva’s argument appears to be quite problematic, for in arguing that Art. 31(2) prevented any leader elected twice from running for a third term, he is almost effectively saying that Art. 31(2) was a provision that couldn’t have been amended, under any circumstances whatsoever. Undoubtedly, term-limits are essential in a democratic system and the 18th Amendment is immensely problematic. But it’s difficult to uncritically accept the idea that Art. 31(2) cannot be repealed, especially if that provision was to be replaced by one which creates a mechanism whereby the President continues to be elected democratically (as is done by the 18th Amendment), at least in theory.

Therefore, I don’t think the ‘disqualification’ that Art. 31(2) creates by preventing a twice-elected President running for a 3rd term can be interpreted in such strict terms, as done by Silva. The illustration he refers to (in the Daily Mirror) to clarify the point about retrospective legislation – i.e. that a new law cannot affect the liability of a person who is already convicted for the offence of rape – may not be the most adequate or suitable one to compare the kind of liability arising from Art. 31(2). An argument which seeks to suggest that Art. 31(2) gives rise to an eternal disqualification appears quite spurious; since unlike in the case of the offence of rape, it could always be argued that the question of how many times a leader could run for presidency through the democratic vote is subject to the ‘sovereignty of the people’ (however problematic that too is, in practice). Also, the need for a presidential term-limit is not an established and sacrosanct international law rule; had it been so, Silva’s argument could have been stronger on the basis that domestic laws cannot be seen to be violating established international law.

Interestingly, though, this seemingly ‘anti-Rajapaksa’ intervention of Silva’s could well be accepted by the Rajapaksa-leadership itself (and the judiciary). There’s no reason to doubt that this intervention may be receiving some attention within the establishment, for various different reasons. And the dubious character of Silva’s intervention is better understood if the broader political context is appreciated.

Silva’s ‘legal’ intervention is interesting only because it’s also part of a political project. On the one hand, it’s somewhat curious that this argument was not raised by Silva during the time the 18th Amendment was introduced (especially at a time when he was a more forceful critic of the regime, given his support for Sarath Fonseka and his release from prison).

But more crucially, a key factor that determines the potential of Silva’s latest intervention is his contemporary role in the political landscape. It has been claimed by JHU’s Ven. Rathana, that Silva is involved in drafting a constitutional amendment proposal for the ‘Pivithuru Hetak’ movement. As argued in a previous column, that’s a movement which is still geared for course-correction and not regime change. Therefore, Silva’s intervention is part of a larger project which is not about toppling the incumbent leadership.

Also, this ‘No-3rd-Term’ policy could well be useful for the incumbent leadership to prolong the holding of an election (and in the meantime, bring about further amendments/legislation to clarify the matter). Also, it’s only a legal/technical point of the nature raised by Silva that may well avoid embarrassment for a politician who might, for some reason or the other, feel uncomfortable going for an early election. Furthermore, Silva’s argument could also be stretched wide enough to prevent someone like former President Chandrika Kumaratunga (considered to be a possible ‘common candidate’) from contesting again under the present system.

One would seek to argue that Silva’s intervention is not without its advantages, for he states that one purpose of his argument is to ensure that a general election takes place before the Presidential election (the latter, as per Silva’s argument, now having to be held in 2016). And therefore, a stronger Parliament can be elected. Yet, this purpose would need to be read in the context of the role Silva plays in the course-correction movement. And Silva even informs the Lankadeepa newspaper, that this is the most suitable time for President

Rajapaksa himself to introduce an amendment to the Constitution concerning the Executive Presidency.
In short, Silva’s latest intervention appears to be the greatest distraction, which shifts the focus from a political debate about a regime that needs to be changed, to a debate on the interpretation of constitutional provisions.

Stated differently, Silva’s genius lies not in preventing President Rajapaksa running for a 3rd term, but in undermining the discourse that calls for a change in the present leadership; and in doing so, he seeks to push the very forces rallied against the present leadership into claiming (obliquely), that President Rajapaksa can and should run for a 3rd term. This is why Silva himself claims that within this broader context, the issue of a common candidate does not even arise.

The question for the regime (and the curious collaborators, like Silva) is not whether President Rajapaksa should or should not run for a 3rd term. The question, rather, continues to be one of whether that 3rd term starts in 2015 or 2016, under which system, and in what form. It’s not about prevention, it’s about postponement.

Courtesy:The Nation