{"id":34038,"date":"2014-10-11T18:31:23","date_gmt":"2014-10-11T22:31:23","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=34038"},"modified":"2014-10-11T18:31:23","modified_gmt":"2014-10-11T22:31:23","slug":"former-chief-justice-sarath-silva-is-playing-a-dangerous-game-by-misinterpreting-constitutional-provisions-to-plug-a-political-line","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=34038","title":{"rendered":"Former Chief Justice Sarath Silva is Playing a Dangerous game by Misinterpreting Constitutional Provisions to Plug a Political Line."},"content":{"rendered":"


\nBy<\/p>\n

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

Last Wednesday in a statement to the Daily Mirror, former Chief Justice Sarath N.Silva put out a new set of arguments against Mahinda Rajapaksa being able to contest a presidential election for the third time. The Daily Mirror article was titled “MR can\u2019t seek opinion on 3rd term: Ex-CJ”. The gist of the former CJ\u2019s new argument was:<\/em><\/p>\n

(a) The President cannot seek the opinion of the Supreme Court on the constitutionality of seeking a mandate for a third term. He can seek the opinion of the Supreme Court on an issue of public importance, or to obtain an interpretation on the constitution. The latter could only be done during the course of judicial proceedings and not otherwise. However, the matter under consideration was merely a personal disqualification of the incumbent President. When the Supreme Court\u2019s opinion is sought in a matter of public importance it is in the exercise of its advisory jurisdiction. This isn\u2019t an issue which falls within that ambit because it\u2019s a personal disqualification for the incumbent. If the President so decides he could seek an opinion in his private capacity from private individuals but that\u2019s as far as he can go!<\/p>\n

(b) Section 31 (3A) of the Constitution states that the President can proclaim an election any time after the expiration of four years in office, however, it specifically states \u2018notwithstanding anything to the contrary in preceding provisions\u2019. The succeeding provision 31 (3)(d) stipulates that that the incumbent has to hold office for the full six years commencing from the date of election. Accordingly the Supreme Court has computed the date of assuming of the second term to be November 19, 2010. The provision is a fait accompli. The President must hold office for the entirety of the six years and cannot call for an early election.<\/p>\n

(c) There has been a debate about whether the Interpretation Ordinance is applicable when interpreting the Constitution. Judicial precedent is very clear and a nine-judge bench has held both on the validity of Section 6 (3) of the ordinance to the constitution and on the repeal of laws.<\/p>\n

<\/p>\n

Just like his previous arguments to the effect that MR can\u2019t contest the presidency for the third time, the three new points that he raised last week also can be called into question. Mr Silva\u2019s first argument is that the President cannot seek the opinion of the Supreme Court on the constitutionality of seeking a mandate for a third term because he can seek the opinion of the Supreme Court only on an issue of public importance, but that the disqualification of the incumbent president from contesting a third time is not a matter of public importance because it pertains to a personal disqualification and the maximum the president can do is to seek an opinion in his private capacity from private individuals! In the same breath Silva also argues that the president cannot obtain an interpretation of the constitution either, because the latter can be done only during the course of judicial proceedings and not otherwise.<\/p>\n

Consultative jurisdiction<\/strong><\/p>\n

It has to be understood that \u2018Constitutional jurisdiction\u2019 in the interpretation of the Constitution under Article 125 of the Constitution and the \u2018Consultative jurisdiction\u2019 of the Supreme Court under Article 129 are two undoubtedly related but distinct things which appear under two separate headings in the Constitution. When it comes to Constitutional jurisdiction, Article 125 goes as follows:<\/p>\n

125. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceeding in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.<\/p>\n

(2) The Supreme Court shall determine such question within two months of the date of reference and make any such consequential order as the circumstances of the case may require.<\/p>\n

We can see clearly from the wording of Article 125 that it refers to matters of constitutional interpretation that arise in judicial proceedings. The president naturally will have little to do with Article 125 and will almost never invoke it to get a constitutional interpretation from the Supreme Court. If the president needs to get something clarified by the Supreme Court, he will invoke Article 129 of the constitution which goes as follows:<\/p>\n

129. (1) If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.<\/p>\n

(3) Such opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one.<\/p>\n

(4) Every proceeding under paragraph (1) of this Article shall be held in private unless the Court for special reasons otherwise directs.<\/p>\n

We see from the wording of the above provision that it is under Article 129 that the president can consult the Supreme Court on constitutional matters. Silva does not deny that the president has a right to consult the Supreme Court but he argues that Mahinda Rajapaksa\u2019s qualification or disqualification is a \u2018private matter\u2019 and not a matter of \u2018public importance\u2019 and therefore the president cannot consult the SC on whether he was disqualified from contesting a third time or not. Perhaps the former CJ should ask himself whether this is a reasonable argument. What can be of greater public interest than whether the incumbent president can contest for the third time or not? The issue here is whether MR\u2019s ability or inability to contest a third time is a matter of public interest. The very reason why Mr Sarath Silva is putting out one set of arguments after another about this matter is precisely because this is a matter of public interest!<\/p>\n

What exactly constitutes \u2018public interest\u2019 was discussed in Hailstone v. Martinez, a 2008 Court of Appeal case in California. In this case, Hailstone was a union employee who was suspended pending an investigation into allegations of financial impropriety by Martinez the Treasurer of the union. Copies of the letter suspending Hailstone was sent to other office bearers of the union and also to the department of labour. In the course of the investigation Martinez also spoke to some others about the financial misappropriation. Hailstone went to courts claiming defamation. Martinez brought out the defence that the alleged defamatory statements concerned an issue of public interest, i.e., the misappropriation of union funds, and was not defamatory. So this case saw an extensive discussion about what exactly constitutes public interest and the following points were mentioned in the judgment.<\/p>\n

* For an issue to be of public interest, it has to have attributes that make it one of public and not merely private interest.<\/p>\n

* The matter should be something of concern to a substantial number of people.<\/p>\n

* A private matter is not turned into a matter of public interest simply by its communication to a large number of people.<\/p>\n

* Public interest is not limited to governmental matters. Private conduct that impacts a broad segment of society is a public issue.<\/p>\n

* In one court case it was found that defamatory statements about the manager of a homeowners association governing 3,000 individuals in 1,633 homes pertained to issues of public interest within that particular community.<\/p>\n

* In another court case, it was held that campaign statements made during a union election affecting 10,000 members involved a public issue.<\/p>\n

If we go by the criteria laid down in Hailstone v. Martinez, the mere fact that the six million plus voters who voted for Mahinda Rajapaksa in 2010, or even the members of the SLFP would want to know whether he is qualified to contest a third time or not, is more than sufficient to turn this into a matter of public interest and thus the president would be well within his rights to invoke Article 129 of the constitution and ask the Supreme Court for a determination on the constitutionality of his contesting for a third time. Moreover according to Article 129, when the president refers a matter of public interest to the SC, it has to be heard by a bench consisting of a minimum of five judges and they have to convey their opinion to the president within a time frame stipulated by the president himself.<\/p>\n


\nMR imprisoned by the constitution?<\/strong><\/p>\n

Another new argument put forward by Sarath Silva is that after a president is re-elected to office having proclaimed an early presidential election after the expiration of four years in office in accordance with Article 31 (3)(a) of the constitution, Article 31 (3) (d) stipulates that that the incumbent has to hold office for six years commencing from the date of election. So Silva argues that when elected to office for the second time after holding an early presidential election, the President must hold office for the entirety of the six years and cannot call for an early election. In Silva\u2019s reckoning, the reason why the president is compelled to serve out his entire six year term once re-elected for the third time is because of the use of the words “Notwithstanding anything to the contrary in the preceding provisions of this Chapter” in Article 31(3)(a)(i) of the constitution. So quite literally notwithstanding anything to the contrary in the preceding provisions of the chapter (Article 31) which is about the election and term of office of the president, he HAS to complete his entire six year term on being re-elected to office for the second time!<\/p>\n

In this connection, it is certainly true that Article 31(3)(a)(i) which is about a president seeking re-election before the expiration of his entire six year term does start off with the words “Notwithstanding anything to the contrary in the preceding provisions of this Chapter”. But the effect of these words are limited just to sub-sub article (i) of sub article (3)(a) of Article 31 and does not even apply to the immediately succeeding Article 31(3) (a)(ii). So on what grounds is anyone to argue that the words “Notwithstanding anything to the contrary in the preceding provisions of this Chapter” in Article 31(3)(a)(i) applies to Article 31(3)(d)?<\/p>\n

Section 31(3)(a) is about the president\u2019s ability to call for an early presidential election. Sections 31(3)(b) and 31(3)(c) are about what happens if the incumbent president dies after calling for an early presidential election. Section 31(3)(d) is about when the re-elected president should assume duties for his second term after an early presidential election. So we see that the various sub-sections designated as (a) (b) (c) and (d) of Section 31(3) are about different aspects of holding an early presidential election and the words “Notwithstanding anything to the contrary in the preceding provisions of this Chapter” which appears only in 31(3)(a)(i) cannot be applied across the board to sub-sections (b) (c) and (d) of 31(3) as well. Mr Silva makes the assertion that article 31(3)(d) when read together with the proviso “Notwithstanding anything to the contrary in the preceding provisions of this Chapter” which appears in Article 31(3) (a) (i) somehow compels the president to sit out his entire six year term of office without calling for an early election during his second term in office. But we have to understand that Article 31(3)(d) is not about the duration of the president\u2019s term in office, but about when the second term of the president begins once he is re-elected after holding an early presidential election.<\/p>\n

Article 31 (3) (d) goes as follows:<\/p>\n

(d) The person declared elected as President at an election held under this paragraph shall, if such person \u2013<\/p>\n

(i) is the President in office, 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 ; or<\/p>\n

Although article 31(3)(d)(i) has the term \u2018hold office for a term of six years\u2019, this Article has nothing to do with stipulating the term of office of the president. And it most certainly cannot be used to say that the president who is re-elected to office after holding an early presidential election under the provisions of 31(3)(a) cannot hold another election early and that he is bound to complete the entire six years before being able to hold another election! Article 31(3)(d) is not about the duration of a president\u2019s term at all. It is about when a president\u2019s new term of office commences after holding an early presidential election. This is also the provision that was the main focus in Sarath Silva\u2019s most celebrated judgment – the 2005 FR case filed by Omalpe Sobitha Thera asking for a determination on when exactly Chandrika Kumaratunga\u2019s second term in office ended.<\/p>\n

What article 31 (3) (d) (i) says according to the interpretation given to it by Sarath Silva himself in Omalpe Thera\u2019s 2005 FR application is that if the date on which the second presidential election is held is a date later than the corresponding date (in the year of the election or the following year) on which the president was first elected to office, then the earlier of the two dates would be the day on which the re-elected incumbent president assumes office for the second time.<\/p>\n

(In Omalpe Thera\u2019s FR application Mr Silva held as follows: 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 CBK\u2019s second term in office would end on 22 Dec 2005. We can see how the same formula was used to determine the day on which Mahinda Rajapaksa\u2019s second term commenced. Mahinda was first elected power on 19 November 2005. He was re-elected president on 27 January 2010. He assumed office for his second term on 19 November 2010 because this was the date that corresponded to the date of his first election to office in the year of the second election. )<\/p>\n

So by no stretch of the imagination can article 31 (3) (d) (i) be used to say that the president has to serve out his entire six year in the second term before calling for fresh elections. This is the article that fixes the date of the commencement of a president\u2019s term in office, not its duration.<\/p>\n


\nThe Interpretation Ordinance<\/strong><\/p>\n

The third new argument put forward by Sarath Silva appears to be a response to an argument made by a lawyer by the name of Chintaka Mendis in an article to The Island where he asserted that the Interpretation Ordinance is not applicable when interpreting the Constitution. Sarath Silva has responded to this by saying that judicial precedent on this matter is very clear and that a nine-judge bench has held on the validity of Section 6 (3) of the ordinance to the Constitution and on the repeal of laws.<\/p>\n

A nine member bench of the Supreme Court may have declared that the provisions of the Interpretation Ordinance can be used in the interpretation of the constitution. But that does not answer the question raised by this writer very early on as to how Section 6(3)(b) of the Interpretation Ordinance can be made applicable to the constitutional provision that existed preventing a president who had been twice elected president from contesting for a third time. <\/p>\n

Article 6(3)(b) of Sri Lanka\u2019s Interpretation Ordinance 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 wording of Article 6(3)(b) makes it very clear that this provision will apply only to the repeal of laws that pertain to offences committed or to any right, liberty or penalty incurred under the repealed law. The disqualification from being elected president for the third time that existed under Article 31(2) of the Constitution, was not an offence. It was not a right. Nor was it a liberty. It was most certainly not a penalty since you cannot say that the incumbent president was \u2018punished\u2019 for winning a second time by being prohibited from contesting a third time! It was only a cap, a limitation. Article 6(3)(b) of the Interpretation Ordinance does not say that it is applicable to any limitations that may have been imposed by the repealed law.<\/p>\n

Former CJ Sarath Silva is playing a dangerous game, using isolated words or phrases in constitutional provisions completely out of context to plug a political line. Can any good result from such misrepresentation?<\/p>\n


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

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

By C.A.Chandraprema Last Wednesday in a statement to the Daily Mirror, former Chief Justice Sarath N.Silva put out a new set of arguments against Mahinda Rajapaksa being able to contest a presidential election for the third time. The Daily Mirror article was titled “MR can\u2019t seek opinion on 3rd term: Ex-CJ”. The gist of the …<\/p>\n

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