Baseless argument to cover political
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
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
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
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
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
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
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
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
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.