By

Somapala Gunadheera

Former Chief Justice Sarath N. Silva has argued in last Sunday’s Island, that despite the implementation of the 18th amendment, President Rajapaksa became constitutionally disqualified to seek a third term on the very day he was elected for a second term.

Justice Silva’s argument is, the day President Rajapaksa was elected for a second term, he automatically became ineligible to seek a third term since Section 31.2 of the Constitution very clearly stated that any individual elected by the people as the President for two consecutive terms, stands disqualified to go for a third term. He has therefore pointed out that the context in which the 18th amendment has been passed contains an ‘important constitutional disqualification’ while adding that despite the 18th amendment removing section 31.2, the disqualification is still applicable to President Rajapaksa.

No retrospective effect

Justice Silva has also noted that this dilemma brings out the question of whether the amendment has a retrospective effect in implementation, as it is important to remember that usually the law is for the future and the changes brought into effect by the 18th amendment are applicable only to a future President.

In order to underpin his argument Justice Sarath Silva has referred to Section 6 of the Interpretation Law, which states that any amendment did not remove disqualifications or punishments previously imposed by law, unless mention to that effect is made in the Amendment and pointed out that those who drafted the 18th amendment had forgotten to make the exception. In that context, if the President informed the Elections Commissioner that he wished to seek re-election for a third term upon completing four years in his second term, any citizen could challenge the Elections Commissioner’s powers to comply with the wish and the matter should be canvassed in a court prior to fixing an election.

Further Justice Silva has observed that,

(1) The 18th was a ‘dishonest amendment’ made solely to entrench President Rajapaksa in power and it has resulted in a violation of the balancing of authority before 18A, when the President was not eligible to independently appoint SC judges, the Chief Justice, Court of Appeal judges, Attorney General, Auditor General, Inspector General of Police, the Secretary General of Parliament as well as the Election Commission, Public Service Commissions, Judicial Service Commission and Finance Commission etc.

(2) The former Chief Justice has also stated that ‘timed elections’ were also a downside in the present presidential system of government and that the masses needed to be made aware of this strategy. He has pointed out that from the former President J.R. Jayewardene who amended the Constitution in 1982 by the third amendment, four years since his election and timed elections, all the other presidents have been manipulating the clause and have succeeded in achieving the desired results.

The bone of contention

I have no problem with the last two observations made above but I have my doubts whether the tenability of the argument that President Rajapaksa was not entitled to be elected President for a third time, as he had exhausted two terms given to him by the original Constitution, would be universally accepted. There is no doubt that the argument offered by such an erudite lawyer as the former Chief Justice whose unique dicta even resulted in the change of regimes, deserves the most serious consideration. In fact I cannot think of anyone else who propounded the objection before him.

Article 31 (2) of the original Constitution declared, ‘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’, followed by Article 92 which stated that every person who was qualified to be an elector should be qualified to be elected to the office of President unless he was subject to any of the given disqualifications, the third disqualification (c) being, ‘If he has been twice elected to the office of President by the People”.

The 18th Amendment has amended the above provisions by Article 2 which declares “The Constitution of the Democratic Socialist Republic of Sri Lanka is hereby amended in Article 31 thereof, as follows:—by the repeal of paragraph (2) of that Article; Article 15 of 18A repeals paragraph (c) of Article 92 above.

In short, what 18A has purported to do is to repeal the bar on a person getting himself elected President more than twice, making it impossible for such a person to contest a Presidential election for a third term. Thus 18A purports to make it possible for President Rajapaksa to contest the next Presidential election and any more elections to come. In that background it could be argued that it was futile for any citizen to challenge the Elections Commissioner’s power to accept President Rajapaksa’s nomination at the oncoming election as Article 92 (c) has removed his power to reject it.

* Justice Sarath Silva’s contention is that under the original Constitution, a President was disqualified from contesting for a third term on the day he was elected by the People. President Rajapaksa was elected by the People on January 27, 2010. The 18th Amendment became effective when the Speaker certified the Amendment on September 9, 2010. That is nearly seven months after President Rajapaksa had been disqualified for re-election. If he was not to be thus disqualified, 18A ought to have included a clause excluding him from that consequence. As no such exception has been made in 18A, President Rajapaksa is not qualified to contest a third time for the Presidency.

A barrage of legal arguments

Someone opposed to this argument would cite the dictum, “If a constitutional amendment does not in terms expressly repeal a constitutional provision, yet, if it covers the same subject provided for in such provision, the amendment will be regarded as a substitute for it and as suspending it.” A counter-argument to that would be, “It is the basic and cardinal principle of interpretation of a democratic constitution that it is interpreted to foster, develop and enrich democratic institutions. To interpret a democratic constitution so as to squeeze the democratic institutions of their life giving essence is to deny to the people or a section thereof the full benefit the institutions which they have established for their benefit”. That position in turn may be contested using the rule, “We must try and construe a statute in such a way, where it is so possible to construe, as to obviate a conflict between its various provisions and also so as to render the statue or any of its provisions constitutional.”

So on and so forth, the legal arguments will escalate ad infinitum. In the meantime, the next Presidential Election will fall due. Happily, Justice Sarath Silva has decided that he would make a personal appearance before the Supreme Court to request its judges to cut themselves off from the shackles of President Rajapaksa. Let us hope that he would convince his former colleagues not only on the principles involved but also on the precept propounded by him. No one can be sure who would convince whom at such a meeting of the country’s legal maestros.

Take no risks

My humble purpose is to caution all protagonists of this debate, on all sides, that in the dicey nature of the proposition involved, it would be prudent to be prepared whichever way the dice turns.

One option for President Rajapaksa would be to use his majority in Parliament to rectify the alleged omission in the 18th Amendment, before it is too late. Discretion is always better than valour, though President Rajapaksa appears to have consistently followed the maxim in the breach. Of course such tinkering of the Constitution is bound to affect his integrity and it is not sure whether he would be able to muster the requisite majority at this critical stage, where legislators’ options are expanding.

The better alternative would be to take the bull by the horns and throw out the ‘Bahubootha” Constitution lock, stock and barrel and usher in a truly democratic instrument, before President Rajapaksa faces the electorate again. The good news is that he was supposed to be already engaged in that task but the bad news is the suggestion that the question of amending the Constitution should be put to the vote at the Presidential Election itself. This attempt to kill two birds with one stone is likely to create problems. The vacillation is bound to alienate from his vote base all those who are fond of Mr. Rajapaksa but are averse to Presidential rule. The President must make up his mind for once, whether he wants to be Head of State from Diyavannava or face the risk of getting thrown out from President’s House. Not even a President can eat the cake and have it.

Be that as it may, the context also has a message for those who are going hammer and tongs to get rid of the present autocratic Constitution. It would be risky for them to suspend their campaign, relying on the belief that Justice Sarath Silva’s contention was sure to succeed.

They should not forget that he is pitched against a Master of Manoeuvre and that anything is possible in the world of legal hair-splitting. Let not the Single Issue Candidate Movement throw away the green leaves they have already gathered at the sight of a fleeting deer.

Courtesy:Sunday Island