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Sunday, 12 October 2014





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Government Gazette

Baseless argument to cover political bankruptcy

An unwarranted debate on whether the incumbent President could seek a third term in office opened when a former Chief Justice aired his views on his interpretation of the clauses in the Constitution.

The 18th Amendment to the Constitution entitles President Mahinda Rajapaksa to seek a third term in office. It is crystal clear that President Rajapaksa could not only contest the next Presidential election but also any number of such elections.

The 18th Amendment to the Constitution introduced on September 9, 2010 removed the Constitutional restriction that prevented the incumbent President for re-election after a second term. The Constitutional Amendment and the historic Supreme Court ruling on the 18th Amendment were delivered by a Bench chaired by the then Chief Justice Shirani Bandaranayake upholding the new law.

However, those who had already conceded defeat and feel that they could never defeat President Rajapaksa at a future presidential election, are now coming out with various theories and their own interpretations that the incumbent President could not seek a third term.

Those aspiring to contest the next presidential election are acutely aware that they are unable to defeat President Rajapaksa, in whom the majority of the masses have reposed implicit faith. At present, he is the only political leader who could command an absolute majority at any given election.

His soaring popularity has set a poser to the leaders of the Opposition political parties who fear that they would not stand a ghost of a chance and look mere Lilliputians in contesting a charismatic leader with a proven track record and accepted by all communities.

Hence, the leaders of all Opposition political parties seem to be suffering from a 'Mahinda Rajapaksa phobia' and resorting to undemocratic means to overcome their biggest threat at the next presidential election. But all such wily efforts would be thwarted as President Rajapaksa has no Constitutional barrier, whatsoever, to seek another term.

Those who are fully aware that they are unable to defeat President Rajapaksa democratically are employing various tactics to cover their political nudity. If the Opposition commands such a large vote base, as they claim, it should take on President Rajapaksa at the next presidential election rather than go by a baseless argument put forward by a retired Chief Justice who made a desperate attempt to steal the limelight on a matter which the Constitutional position is unequivocally clear.

Certain disgruntled Opposition politicians who have been rejected by the masses, in toto, are now trying to prevent President Rajapaksa contesting a future election since he is invincible and the Opposition is devoid of a proper contender who could take on an undisputed leader.

External Affairs Minister Prof. G.L. Peiris, an eminent authority on law and constitutional affairs, has quite rightly dismissed, the argument that President Rajapaksa who received his second mandate in January 2010 stands disqualified to contest another Presidential election since the amendment, is not retroactive. The Constitution is explicit and has no element of ambiguity as to the qualification of the incumbent President to run for another term.

The Minister has made it abundantly clear that nobody could compel people to elect anybody and the only legal bar to contest the Presidency has been removed. The Supreme Court ruling on the matter confirms that it would be a denial of the people's franchise if the President is debarred from contesting.

The prevailing law leaves no room to create a controversy with regard to President Rajapaksa's right to contest a third term or his intention to seek a mandate for a third time to continue as the Executive President.

Rather than trotting out one's theories, one must first and foremost look into the Constitutional situation that prevailed prior to the introduction of the 18th Amendment. 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".

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, according to this provision in the Constitution.

The 18-A repealed this particular provision, Article 31 (2). This means that the provision ceases to exist. This is as clear as daylight. The restriction was removed with the implementation of the 18th Amendment on September 9, 2010.

Therefore, it is crystal clear that an incumbent President is eligible to run for a third term or fourth and get elected if the people so desired.

In any democracy, the masses' majority wish is the most important tool and the 18th Amendment has afforded this right to the masses to decide on the number of terms that they could vote for an incumbent President.

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 a sense, the Amendment would enhance the people's franchise 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 indisputable that the President is 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 then Supreme Court Bench headed by Chief Justice Shirani Bandaranayake, comprising SC Judges K. Sripavan, P.A. Ratnayake, S.I. Imam and R.K.S. Suresh Chandra, upheld that the 18th Amendment was a good move to strengthen the people's franchise.

Prior to the 18th Amendment, Article 31 (3A) (a) (i) of the Constitution said: "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".

However, this provision was changed by the 18th Amendment, under which the clause of the same Article, the 'first term' of office has been replaced by 'current term' of office - meaning it can be done for the third and fourth terms. Thus, the Article, after the 18th 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 former Chief Justice'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 18th Amendment. This is totally incorrect and a baseless claim considering the fact that the Constitution has to be construed at the time. The operative date is when the proclamation is issued. It is then that you need to decide whether there is eligibility or not. Therefore, it is vital to interpret the Constitution as it exists at that time.

The Opposition has been levelling various allegations against the Government in a desperate bid to regain power. If these allegations had been proved with concrete evidence, the masses would have toppled the UPFA Government and found a new President.

The recent election results had proved beyond a shadow of doubt that the masses continue to repose implicit faith in President Rajapaksa and the UPFA Government. Having eradicated LTTE terrorism and the praiseworthy efforts to develop the country to improve the living standards of the people have not only won the hearts of people in urban areas but also those in far flung places.

It has become an uphill task for the Opposition to challenge the President's immense popularity. Hence, the Opposition is trying to take advantage of a baseless argument to cover its political bankruptcy.


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