{"id":32693,"date":"2014-08-24T16:46:29","date_gmt":"2014-08-24T20:46:29","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=32693"},"modified":"2014-08-24T19:34:20","modified_gmt":"2014-08-24T23:34:20","slug":"ex-cj-sarath-silva-who-enabled-mahinda-to-become-president-by-kicking-out-chandrika-is-now-blocking-a-third-term-for-rajapaksa","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=32693","title":{"rendered":"Ex-CJ Sarath Silva who Enabled Mahinda to Become President by Kicking out Chandrika is now Blocking a Third Term for Rajapaksa"},"content":{"rendered":"

By<\/p>\n

C.A.Chandraprema<\/strong><\/p>\n

\"Rtd.<\/a>

Rtd. Chief Justice Sarath Nanda Silva<\/p><\/div>\n

Last week the Irida Lankadeepa published an interview with the former Chief Justice Sarath Silva where he had argued that President Mahinda Rajapaksa was disqualified from contesting a third time. It was a ruling given by Silva in 2005 that sent Chandrika Kumaratunga home one year before she thought she was due to relinquish office. This writer has always held that Silva ranks as one of the heroes who pulled this nation out of the abyss because he sent CBK packing one year early. If not for him, Mahinda would not have become president, Gota would not have become defence secretary, Sarath Fonseka would not have become army commander, the war machine would not have been set up, Prabhakaran would have been still wiping his feet on us, Sri Lanka would have been a broken, defeated nation, the roads would not have been carpeted, Colombo wouldn\u2019t be looking like what it is today, and the Sinhalese would have had no self respect.<\/p>\n

Indeed Silva is a national hero because he made all that has been achieved possible with one of the most convoluted and diabolically clever rulings that has ever been delivered by our Supreme Court. CBK is probably still at a loss to understand how she was kicked out one year early! We will dwell on that nation-saving ruling later in this column but it now appears that the former CJ is formulating theory to kick out Mahinda Rajapaksa as well. Given the fact that it is no lesser a person than Sarath Silva who claims that MR is disqualified from contesting a third time, everybody should stand up and take notice. We would like to examine below some of the arguments that Silva he has put forward in his Irida Lankadeepa interview.<\/p>\n

<\/p>\n

Argument 1: The first argument put forward by the former CJ is based on the now repealed Article 31(2) of the constitution which went as follows: “No person who has been twice elected to the office of President by the People shall be qualified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 points out that according to the wording of this Article, a sitting president becomes disqualified to contest a third time on the very day he gets elected to office for the second time. MR was elected president for the second time on 26 January 2010 and on that very day he became disqualified to contest for the third time. Thereafter, the 18th Amendment which was passed on 9 September 2010 repealed Article 31(2) allowing a president to hold office on more than two occasions.<\/p>\n

Silva\u2019s contention is that the 18th Amendment was passed several months after MR was elected president for the second time and that by such time, he had already become disqualified from holding office a third time. Now the question is whether the repeal of Article 31(2) on 9 September 2010 will apply retrospectively to a person who was disqualified under that very law back in January 2010. Silva argues that laws are usually not applicable retrospectively.<\/p>\n

But according to a landmark decision handed down by the celebrated American judge Samuel Chase in Calder v. Bull (1798) the ban on the retrospective applicability of laws relates only to criminal and not civil matters. In this case, Morrison died and Bull became the beneficiary of his will. Due to a problem with the will, Bull was denied his inheritance by a court and Calder became the beneficiary. Bull tried to appeal this decision a couple of years later, but at that time the statute of limitations stipulated that an appeal had to be lodged within 18 months, so it was time barred. Then the state changed the limitations law and Bull was able to appeal and win back the money from Calder. The latter appealed to the US Supreme Court saying that laws could not be retrospectively applicable according to the American constitution. (This case in fact has direct relevance to Sarath Silva\u2019s argument because this too was a case of a person who was disqualified earlier suddenly becoming qualified to appeal due to a subsequent change in the law!) <\/p>\n

Chief Justice Chase said in his judgment in Calder v. Bull that retrospective laws are repugnant when they seek to criminalize acts that were not criminal when committed, to make a crime greater than at the time it was committed, to enhance a punishment after an act was committed or dilutes the rules of evidence after an act was committed, to obtain a conviction. CJ Chase observed “but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement”. He also said that retrospective laws may be proper or necessary, as the case may be and that to prohibit the enacting of any law after a fact, will greatly restrict the power of the legislature. Justice Iredell who was on the bench that heard Calder v. Bull said that the prohibition on retrospective laws extends only to criminal, not civil cases.<\/p>\n

In a much more recent landmark case in Canada R v. Bickford (1989) it was decided that the legislative abrogation of the requirement for corroboration in cases of sexual assault was applicable immediately to offences which predated the amendments. Even though Chief Justice Samuel Chase specifically mentioned the dilution of evidence laws to be one instance where the retrospective application of new laws would be unacceptable, modern practice has taken a different turn even with regard to criminal matters. One Indian writer pointed out that even the celebrated British judge Lord Denning had said that the rule that an Act of Parliament is not to be given retrospective effect does not apply to statutes which only alter the form of procedure or the admissibility of evidence. Given all this, why should the repeal of article 31(2) of the constitution not apply retrospectively to Mahinda Rajapaksa since it relates only to a harmless procedural matter?<\/p>\n

Argument 2: The second argument that Sarath Silva has put forward to say that MR is disqualified from contesting a third time is closely related to the first. What he told the Irida Lankadeepa is that “Section 6 of the Interpretation Ordinance says that the repealing of a law does not automatically remove any disqualification or punishment imposed under that law. Special enactments are necessary for the removal of such disqualifications and punishments imposed under the now redundant law. However no such special enactment was made in President Rajapaksa\u2019s case. So the disqualification is still operational.” Silva sees this omission as an oversight on the part of those who drafted the 18th Amendment.<\/p>\n

What Silva was referring to was Article 6(3)(b) of Sri Lanka\u2019s Interpretation Ordinance which goes as follows:<\/p>\n

“Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected any offence committed, any right, liberty, or penalty acquired or incurred under the repealed written law”<\/p>\n

The contention here is that even though Article 31(2) of the constitution which disqualified a person from being elected president on more than two occasions has been repealed by the 18th Amendment, no special enactment has been made to release president Rajapaksa from the disqualification that the repealed article imposed on him at the time he was re-elected for the second time. If one looks at the wording of Article 6(3)(b) of the Interpretation Ordinance, the disqualification from being elected president for the third time that existed under Article 31(2) of the constitution, can only fall into the category of \u2018penalty\u2019 since that disqualification is not an \u2018offence\u2019, \u2018right\u2019 or \u2018liberty\u2019. But you cannot consider the limitation of a president\u2019s tenure to two terms a \u2018penalty\u2019 by any stretch of the imagination. It was just a cap, a limitation. The term penalty however refers to penal measures. You can\u2019t really say that the former presidents of Sri Lanka were \u2018punished\u2019 for becoming president twice by being disqualified from holding the post for the third time. So the question arises whether Article 6(3)(b) of the Interpretation Ordinance has any application or relevance to the repeal of Article 31(2) of the constitution.<\/p>\n

Argument 3: The former CJ has also raised a question relating to calling for early elections. Article 31 (3A) (a) (i) of the Constitution stipulated that “the President may, at any time after the expiration of four years from the commencement of his first term of office, by Proclamation, declare his intention of appealing to the People for a mandate to hold office, by election, for a further term. “The 18th Amendment amended this Article by replacing the words “at any time after the expiration of four years from the commencement of his first term of office” with the words “at any time after the expiration of four years from the commencement of his current term of office”.<\/p>\n

Silva\u2019s contention in this instance is that when the wording of this Article was changed by the 18th Amendment, the term \u2018second term\u2019 was not specifically used and therefore the term \u2018current term\u2019 may apply only to the first term and that this has to be interpreted and defined! What this contention shows more than anything else is that Silva is going to use every word, every comma and every period, to thwart Mahinda from contesting a third time. It is true that the term \u2018current term of office\u2019 can refer only to the first term in office, but it can also be applied to the second, third or fourth term in office too. Insisting on such pinpoint specificity is an act of protest and opposition rather than the raising of a genuine point of procedure. Should anyone waste the time of the Supreme Court asking for a determination that the term \u2018current term of office\u2019 can be a reference to the second term in office?<\/p>\n

Argument 4: Silva had also said in that Irida Lankadeepa interview that “If the president instructs the Elections Commissioner to hold a presidential election, anybody can challenge that in courts saying that the EC does not have the power to call for such an election.” This statement is an indication that Silva is really going for the jugular and wants to throw the spanner into the works by blocking the next presidential election with litigation. <\/p>\n

Certain statements made by Silva in that interview indicate that his insistence on legalistic and semantic minutiae in his earlier arguments were only a means to an end and that he was willing to be less pedantic if it suited his purpose. He contends for example that President Rajapksa can hold office till November 2016. But if he holds power till that time, a parliamentary election will have to precede the presidential election because the term of the present parliament ends in March 2016. Silva contends that “by holding a parliamentary election first, this confusion can be resolved because then parliament becomes more powerful. What has happened today is that the presidential election is held first and the parliamentary elections after that, which results in parliament being devalued.”<\/p>\n

We all know that the mere holding of a parliamentary election first does nothing to alter the constitutional powers of parliament vis-a-vis the executive presidency. Yet Silva holds that the \u2018confusion\u2019 mentioned above can be resolved if the parliamentary election is held first. He is now talking politics not law. If the parliamentary election is held first as in 1994, that election will determine which way the political cookie crumbles. One cannot but notice that the entire effort of certain people appears to be directed at doing away with the executive presidency or as a second best to get the parliamentary election held first. So we see former CJ Sarath Silva swinging effortlessly between pedantic legalism and realpolitik. <\/p>\n

In suggesting that a parliamentary election held first will cure all the legal maladies that he has mentioned in that interview, Silva was in effect conceding that the law too takes more than just the text of a law into account in making a determination. In fact, all the legalistic questions that Silva has raised – whether the disqualification in repealed Article 31(2) of the constitution still attaches to Mahinda, whether a special enactment is necessary to remove that disqualification, whether the term \u2018current term of office\u2019 also refers to a second term in Article 31 (3A) (a) (i) of the constitution; can be the subject of judicial interpretation in much less pedantic circumstances than Silva would suggest. Any judge would in making a determination, look not just at the text, but at the surrounding circumstances, at the purpose of the legislation, at the intent of the framers of a law, at the practical consequences of a particular interpretation etcetera.<\/p>\n

In fact perhaps Sarath Silva should look at Mahinda\u2019s third term in office using all those techniques of interpretation in order to arrive at a reasonable conclusion. An error that he had made in that interview gives us an opening to discuss a more reasonable approach. Silva had said in that interview that “In the American system, there was a limit on the number of terms that the president could serve from the very beginning. No president in American history has served more than two terms.” This does not appear to be correct as there was no restriction on the number of terms an American president could serve until Franklin Delano Roosevelt won four consecutive terms from 1933 to 1945. The 22nd Amendment to the American constitution was ratified in 1951 restricting the tenure of American presidents to two terms. Even though there was no restriction before that, no president had served more than two terms.<\/p>\n

In any political system only a very exceptional president will be able to win more than two terms in office. Franklin Roosevelt was a very exceptional president who steered America to new heights through the great depression and the Second World War. Even though the 18th Amendment removed the limitation imposed on the tenure of the executive president this is nothing to worry about because only in very exceptional circumstances will any politician be able to aspire to more than two terms at the top. In his Irida Lankadeepa interview, Silva had also said that “If there is no limit the executive president will become a dictator \u2013 this is what has happened in the Middle East.” That too is an overstatement. There are no multi-party democracies or regular elections in the Middle East as we have in Sri Lanka. Despite his rather unbalanced approach to MR contesting a third time, Sarath Silva will always be a heroic figure to this writer for certain crucial judgments given in the past, such as the North-East de-merger and the ousting of CBK. Many people have faced persecution under CBK. We recount below how Silva booted her out one year early. That determination was so complicated that this writer is not sure whether he has got all the points right, but here we go.<\/p>\n


\nHow Sarath Silva ousted CBK<\/strong><\/p>\n

In 2005 a controversy arose as to whether President Chandrika Kumaratunga\u2019s second term of office ended in 2005 or 2006. President Kumaratunga had put forward the claim that after winning the December 1999 presidential election, her second term began on 10 November 2000 as per the provisions of Article 31(3)d(i) of the constitution and therefore she would be entitled to remain in office till 10 November 2006. Omalpe Sobitha Thera of the JHU filed a fundamental rights application (No: 278 of 2005) in the Supreme Court requesting a clarification of the matter. The constitutional provision that needed interpretation was 31(3)d(i) which stipulated that if an incumbent president was re-elected for a second term, he will: “hold office for a term of six years commencing on such date in the year in which that election is held (being a date after such election) or in the succeeding year, as corresponds to the date on which his first term of office commenced, whichever date is earlier.”<\/p>\n

CBK\u2019s lawyers argued in terms of the above constitutional provision that since the date of re-election 22 December 1999 was \u2018a date after\u2019 the corresponding day and month on which Chandrika had been first elected to office (10 November 1994) her second term in office began in \u2018the succeeding year\u2019 on 10 November 2000. On that basis they argued that CBK\u2019s second term would end on 10 November 2006. Sarath Silva rejected this argument and declared that CBK\u2019s second term would end on 22 December 2005. Firstly, he argued that the word \u2018date\u2019 does not denote only the day and the month, but the year as well. Secondly he asserted that due cognizance has to be taken of the term \u2018whichever date is earlier\u2019 that appears after a comma at the end of Article 31(3)d(i) of the constitution.<\/p>\n

Then he pointed out an inherent illogicality in Section 31(3)d(i) which would result if the term date was taken to mean only the day and month without taking the year into consideration. He illustrated this with a hypothetical example. If CBK had been first elected to power on 21 December 1994 and she had won her second presidential election on 22 December 1999, because the date of the second poll is \u2018after\u2019 the corresponding day and month of her first election, she would be entitled to commence her second term of office on 22 December 2000. But if the date of her first election to office had been 23 December 1994, she would have had to commence her second term on 22 Dec 1999 because that was the \u2018earlier\u2019 of the two dates. So a difference of just two days in the scheduling of the second election would mean a difference of about one year in the tenure.<\/p>\n

The term \u2018whichever date is earlier\u2019 at the end of Article 31(3)d(i) was separated from the rest of the sentence with a comma and therefore it meant a comparison between two dates. (The \u2018date\u2019 here comprising of the day, the month and the year as well.) The pivotal date would be the date on which the election for the second term is actually held. The other date would be that which corresponds to the date on which the president was first elected to office which falls in the year of the election or the succeeding year as the case may be. The \u2018earlier\u2019 of the two dates would be the date on which CBK\u2019s second term commenced.<\/p>\n

The commencement of CBK\u2019s first term had been on 10 November 1994. Therefore, the date corresponding to her first election to office which falls immediately after her second election was 10 November 2000. The election for her second term however was held on 22 December 1999. Since the \u2018earlier\u2019 of these two dates was 22 Dec 1999, that would be the day on which her second term commenced. Therefore Chief Justice Silva ruled that CBK\u2019s her second term in office would end on 22 Dec 2005.<\/p>\n

Courtesy:Sunday Island<\/em><\/p>\n

Tweet<\/a><\/div>","protected":false},"excerpt":{"rendered":"

By C.A.Chandraprema Last week the Irida Lankadeepa published an interview with the former Chief Justice Sarath Silva where he had argued that President Mahinda Rajapaksa was disqualified from contesting a third time. It was a ruling given by Silva in 2005 that sent Chandrika Kumaratunga home one year before she thought she was due to …<\/p>\n

Continue reading ‘Ex-CJ Sarath Silva who Enabled Mahinda to Become President by Kicking out Chandrika is now Blocking a Third Term for Rajapaksa’ »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[12],"tags":[],"_links":{"self":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/32693"}],"collection":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=32693"}],"version-history":[{"count":2,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/32693\/revisions"}],"predecessor-version":[{"id":32700,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/32693\/revisions\/32700"}],"wp:attachment":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=32693"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=32693"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=32693"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}