Explicit provision in the Constitution:

President Mahinda Rajapaksa can contest for a third term  - Minister G.L.Peiris

By Manjula Fernando

External Affairs Minister G.L.Peiris who is an authority on Constitutional Law, shot down claims, in an exclusive interview with the Sunday Observer, that President Mahinda Rajapaksa is not eligibile to offer himself for re-election for a third term, citing explicit provision in the Constitution.

Referring to the constitutional amendment and the historic Supreme Court ruling on the 18-A delivered by a bench chaired by the then Chief Justice Shirani Bandaranayake upholding the new law, Prof.Peiris said the attempt was to prevent the President from running for a future election since he was invincible and the opposition is devoid of a proper contender.

The 18-A introduced in September 9, 2010 removed the constitutional restriction that prevented the sitting President for re-election after a second term.

With the news of a Presidential election to be held next year, former Chief Justice Sarath N Silva whipped up a discussion that President Rajapaksa who got his second mandate in January 2010 stands disqualified to contest another Presidential election since the amendment is not retroactive.

The Minister said the Constitution was explicit and leaves no element of ambiguity as to the qualification of the sitting President to run for another term.

"Nobody is forcing the people to elect anybody, only the legal bar to contest has been removed," he said, adding the SC ruling confirms it a denial of people 's franchise right if the President is barred from contesting.

The interview was held prior to Minister Peiris's departure to Rome with President Rajapaksa to extend the official invitation to Pope Francis to visit Sri Lanka in January.

Excerpts of the interview,

There is no controversy at all with regard to the President's right to run for a third term or his intention to seek a mandate for a third time to continue in the office of Executive President, according to the present law of the country.

To argue a case, you have to look at the Constitution before the 18th Amendment and after the 18th Amendment and evaluate the situation. The law is explicit and there is no element of ambiguity.

Prior to the 18th Amendment the Constitution included, Article 31 (2) which stated, "No person who has been elected twice to the office of Presidency by the people shall be qualified thereafter to be elected to such office by the people."

Before the 18th Amendment

According to this provision in the Constitution, if a person has been elected twice, thereafter he ceases to be qualified to be elected to the office of Executive President - he is not eligible.

The 18-A repealed this particular provision, Article 31 (2). This means the provision ceases to exist. Nothing can be clearer than that. There was a restriction and the restriction has now been removed. This in turn says now a sitting President is eligible to run for a third term or fourth and get elected if the people so wished.

I would now like to refer to this Judgment by the Supreme Court on the 18th Amendment where they have upheld the Amendment in strong words. Justice Shirani Bandaranayake was also a member of the panel of judges that delivered this ruling which makes the point crystal clear.

"It is to be noted that the aforesaid Article 4 (e) of the Constitution refers to the exercise of the franchise of the People and the amendment to Article 31 (2) of the Constitution by no means would restrict the said franchise. In fact, in a sense, the Amendment would enhance the franchise of the People granted to them in terms of Article 4 (e) of the Constitution since the voters would be given a wide choice of candidates including a President who had been elected twice by them. It is not disputed that the President is directly elected by the People for a fixed tenure of office. The constitutional requirement of the election of their President by the People of the Republic, strengthens the franchise given to them under Article 4 of the Constitution."

The other judges of the bench were K.Sripavan, P.A.Ratnayake, S.I.Imam and R.K.S. Suresh Chandra. They have upheld that the 18th Amendment was a good thing that will strengthen the franchise of the people of the country.

With regard to the other two points you have made, it should be referred to Article 31 (3A) (a) (i) in the Constitution. Before the Amendment it says, " Notwithstanding anything to the contrary in the preceding provisions of this Chapter, 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."

After the 18th Amendment

It says in the constitution the President can after expiration of four years of his 'first term' can call for election by proclamation. This provision has been changed in the 18-A. The 'first term' of office has become the 'current term' of office meaning it can be done for the third and fourth terms.

The Article, after the amendment, reads, "Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his current 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 Constitution deals only with the eligibility of the President to contest the election. It makes him legally eligible to offer himself for election, whether he succeeds or not is up to the people.

That is what the Supreme Court has ruled that this amendment expands and strengthens the franchise and it is democratic. No body is forcing the people to elect anybody, only the legal bar to contest has been removed.

Whether he is elected is not a matter of law. It is a matter relating to the will of the people. And this restriction is removed by express words, not by implication, in very clear terms the limiting clause has been removed.

Former Chief Justice Sarath Silva's argument is that the restriction has been removed for the future. He says it does not apply to the person who was elected prior to the 18-A. That is not correct, because the Constitution has to be construed at the time. The operative date is when the proclamation is issued. It is then that you have to decide whether there is eligibility or not.

Therefore, you have to interpret the Constitution as it exists at that time. It is a mistake to apply a principle that is relevant to the construction of criminal statutes, to the Constitution. If Parliament creates a new offence, which was not an offence under the Penal Code earlier, this offence becomes punishable only for the future. The theory is that at any time, you should be in a position to construe the criminal law and ascertain whether a particular act is an offence or not. That is with regard to criminal statutes.

Exercise of the People's Franchise

If I commit a certain action today and the next week Parliament makes this action an offence , I cannot be dealt under that law because at the time I committed that act, the law was not there. The provisions of criminal law are prospectively and not retroactively applicable. But that is not applicable to the provisions of the Constitution.

In the Constitution, the intentional legislature is explicit. The limiting clause in the provision has been expressly removed. It has been further fortified by the substitution of the phrase, "current term" for " first term". Therefore, the matter is totally beyond doubt. There is no element of ambiguity at all.

The argument of retro-activity is not valid. The constitutional document has to be interpreted at the relevant time, at the time of the proclamation.

We are not worried about legal action. The Opposition must field a proper contender who could face up to President Rajapaksa in the next election. You face him and defeat him, if you can.

This argument itself is an admission that the President is going to win this election, if he's allowed to come forward, so the intention is to use whatever possible to prevent him from coming forward!