{"id":35002,"date":"2014-11-17T13:26:53","date_gmt":"2014-11-17T18:26:53","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=35002"},"modified":"2014-11-17T13:26:53","modified_gmt":"2014-11-17T18:26:53","slug":"can-chandrika-kumaratunga-contest-presidential-elections-for-a-third-time-like-mahinda-rajapaksa","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=35002","title":{"rendered":"Can Chandrika Kumaratunga Contest Presidential Elections for a Third Time Like Mahinda Rajapaksa?"},"content":{"rendered":"

By <\/p>\n

Zahrah Imtiaz<\/strong><\/p>\n

When Leader of the House, Minister Nimal Siripala de Silva, announced in Parliament on Tuesday, 11 November, the Supreme Court Opinion on the third presidential term of Mahinda Rajapaksa, the immediate reflection in the minds of many was; ‘if Mahinda can, so can Chandirka’.<\/p>\n

The matter, however, is not so straightforward.<\/p>\n

As the Opposition is frantically looking for a common candidate, to bring all parties in the Opposition onto a common platform to defeat President Rajapaksa, the former President too, has sought a comeback. Whether she is qualified to do so, is another matter altogether.<\/p>\n

<\/p>\n

Former President Chandrika Bandaranaike Kumaratunga may have two legal barriers obstructing her candidature for a third presidential term. One is her involvement in the Waters Edge case and the other is the question whether her term limitation too was removed when the 18th Amendment to the Constitution came into effect.<\/p>\n

The law prescribes, if a person is convicted of a crime, he or she becomes disqualified to hold public office. The former President was ordered to pay Rs 3 million in compensation to the affected parties in the Waters Edge case.<\/p>\n


\nInitial disqualification<\/strong><\/p>\n

Kumaratunga became disqualified to contest for a third term in 2005, as Article 31 (2) of the Constitution, which limits the number of terms a candidate can contest for the office of President to two, was legally binding at that time. Thus, the question as it currently stands is; does the Supreme Court’s Opinion on President Rajapaksa remove the barriers for Kumaratunga too? This depends on what basis the ruling was made.<\/p>\n

President’s Counsel, Dr. Jayampathy Wickramaratne, commenting first on the Waters Edge case said, “The Waters Edge deal was a Fundamental Rights Petition and it was a compensation order. She was not convicted. It is not a legal impediment for her to contest.”<\/p>\n

With regard to the restriction imposed in terms of Article 31 (2), Dr. Wickramaratne said, “If the 18th Amendment affects Mahinda Rajapaksa, it affects Chandrika too. Or it does not affect either of them.”
\nAttorney-at-Law, Viran S. Corea, too agreed that the Waters Edge case would not affect Kumaratunga as she was not convicted of any crime and that her civic rights were not removed by the ruling. He added the basis on which the Supreme Court Opinion was made would determine whether Kumaratunga too would be able to contest for a third term. “I am not sure if the 18th Amendment applied to her. Did the Supreme Court remove the barrier for all or just for President Rajapaksa?” questioned Corea.<\/p>\n

Attorney-at-Law, Gomin Dayasiri, who had been strongly advocating the incumbent’s ability to contest for a third term, opined that the 18th Amendment removed the barrier for all previous Presidents to contest for more than two terms.<\/p>\n

“This was not just a decision about Mahinda Rajapaksa. It was a wide question about a President contesting thrice. On that premise, Chandrika Kumaratunga too can contest,” he said adding, “She can contest, but that does not mean she would be elected. If the people have a problem with her candidature they can challenge her in Court later.”The problem, however, is not so simple. <\/p>\n

Former Chief Justice, Sarath N. Silva, who initially pointed out the disqualification of President Rajapaksa to contest for a third term, argued that as the incumbent was elected in January 2010, the 18th Amendment, which was passed in September of that year, did not apply to the President. The former Chief Justice said, since the 18th Amendment did not specifically state that it applied retrospectively, the incumbent was already disqualified for a third term as soon as he was elected for a second, in accordance with Article 31 (2) of the Constitution. This interpretation was made in line with the Interpretation Ordinance that states that a law must specifically state whether it applied retrospectively, if it was to apply to scenarios that existed prior to its passing.<\/p>\n

President’s argument<\/strong><\/p>\n

The President, however, argues that his second term began officially in November 2010, when he took oaths as President and that he was well within the confines of the 18th Amendment. President Rajapaksa in his letter to the Supreme Court asking for an opinion on his third term has cited the November date as the date on which his second term began.<\/p>\n

The letter from the President to the Supreme Court reads thus:<\/p>\n

“(a). Whether in terms of Article 31 (3A)(a)(i) of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, have any impediment, after the expiration of four years from the date of commencement of my second term of office as President on 19 November 2010, to declare by proclamation my intention of appealing to the people for a mandate to hold office as President by election, for a further term; and<\/p>\n

(b). Whether in terms of the provisions of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, and was functioning as such on the date the 18th Amendment was enacted, have any impediment to be elected for a further term of office.”
\n <\/em><\/p>\n

The intention thus is clear. The Supreme Court was to consider 19 November as the official date on which President Rajapaksa started his second term. Accordingly, the 18th Amendment would apply to him. However, as former President Kumaratunga was disqualified prior to the 18th Amendment came into being, her chances of contesting for a third term have become slightly more complicated.<\/p>\n

Attorney-at-Law, Lal Wijenayake, however, pointed out “The intention of the Amendment has been made clear by the Supreme Court. It allows anyone to contest multiple times.” He elaborated further the logic behind the Opinion of the Supreme Court: “According to the Supreme Court, the Interpretation Ordinance does not apply to the Constitution.”<\/p>\n

Hence, it can be concluded that the 18th Amendment applied to all past Presidents.<\/p>\n

“If Mahinda Rajapaksa can, she can. If Chandrika were to hand over her nominations to the Commissioner of Elections, he has to accept it and she can contest. There are no legal impediments as such for her. Once she is elected, they can challenge it according to the Elections Petition,” said Wijenayake.<\/p>\n

As the discussion on Kumaratunga’s candidacy for a third term continued, the former Chief Justice, said:
\n“Chandrika is not the common candidate. She does not qualify in this discussion. We do not even accept that Mahinda Rajapaksa is qualified to contest a third term, so how can Chandrika qualify?”<\/p>\n

He continued, “The Supreme Court should not be giving secret opinions, without having heard the public petitions. It is a violation of fundamental rights of the people, to not hear public petitions on the matter.”<\/p>\n


\n‘Not a judgment’<\/strong><\/p>\n

He added that what the Supreme Court had given was simply an opinion, ‘not a judgment.’<\/p>\n

The crux of the matter at present, however, is that many of the opinions expressed by the lawyers and constitutional experts on the subject are limited to mere conjecture until the Supreme Court makes its full opinion public. None currently knows the basis on which the Supreme Court has allowed Mahinda Rajapaksa to contest for a third term. Given this scenario, it is not clear whether Chandrika Kumaratunga too, is cleared for a third term.<\/p>\n

With such confusion looming in the air, Chief Opposition Whip, John Amaratunga in Parliament on Thursday (13) requested that the government table a copy of the Supreme Court opinion, which enabled President Rajapaksa to contest for a third presidential term. The Speaker, who promised to look into the matter, added that it was up to the Executive to decide whether he wanted the opinion made public or not.<\/p>\n

It is imperative that the Opposition knows the full contents of the opinion before they decide to field Kumaratunga as the common candidate, for if the Supreme Court had decided that Kumaratunga remained disqualified, the President could bring the matter up during nominations.<\/p>\n

Once the nomination papers of a candidate are handed over to the Commissioner of Elections, it becomes final. If he or she becomes disqualified after, no more candidates can be nominated from that party and the rest must go on with the race. The Opposition needs to be cautious that the next Presidential Election by default does not become a one horse race.<\/p>\n

Courtesy:Ceylon Today<\/em><\/p>\n

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By Zahrah Imtiaz When Leader of the House, Minister Nimal Siripala de Silva, announced in Parliament on Tuesday, 11 November, the Supreme Court Opinion on the third presidential term of Mahinda Rajapaksa, the immediate reflection in the minds of many was; ‘if Mahinda can, so can Chandirka’. The matter, however, is not so straightforward. As …<\/p>\n

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