President Rajapaksa can contest a third term
The former Chief Justice, Sarath N. Silva, has said that despite the
18thAmendment to the Constitution, President Mahinda Rajapaksa has
become constitutionally disqualified from contesting an election to seek
a third term as President of the Republic.
The facade of the Presidential Secretariat
Though the 18th Amendment to the Constitution has sought to repeal,
on the whole, the former Article 31(2) of the Constitution and thereby,
remove the limitations of the second term, he still says, the repeal
does not apply to the incumbent President by virtue of the fact that the
latter was not in operation at the time he was elected as President.
Therefore, the provisions of Article 31 (2) and the disability the
President suffered, continues and the repeal of the Article imposing
restrictions would apply only to any future President.
If the Legislature intended that the repeal, of Article 31(2), should
be ex post facto Legislation, that intention should be manifestly clear
in the amending Article. No Statute should be construed as having any
retrospective operation unless precise, clear instructions are embodied
in that Statute.
According to Justice Silva, “the 18th Amendment was enacted and
passed in Parliament in haste without giving due consideration to the
legal implications and especially to whether it could be applied
retrospectively and if so, whether the legislature should have
specifically enacted such provisions.”
The 18th Amendment clearly discloses, unambiguously, the intentions
of the Legislature, and the only solution available to Mahinda Rajapaksa,
the incumbent President, who has declared his intention to contest for
the third term, is to go before the Parliament and by bringing in
another amendment to the Constitution, remove any legal restrictions.”
Former Chief Justice Sarath N. Silva thereafter made a startling
confession and almost wept over the television asking for pardon from
the nation for having delivered a judgment in the ‘Helping Hambantota’
Case. I do not know what he has to say about mandating the Presidential
Elections to be held one year before schedule.
Therefore, even if there is some merit in his argument, no one should
take him seriously, as he might come again and ask for pardon from the
nation for having pronounced his opinion on whether Mahinda Rajapaksa
could contest for the third time.
Meanwhile, some of the leading lawyers in Sri Lanka, including the
former President of the Bar Association, Wijedasa Rajapakshe PC and
Jayampathy Wickremaratne PC, have said that Mahinda Rajapaksa cannot
contest for the Presidency as he has forfeited his rights to contest,
when he contested the Presidential Elections and sought a mandate from
the people to be elected as the President of the country.
The Bar Association of Sri Lanka incumbent President, Upul Jayasuriya
has sought the opinion of one of the most distinguished jurists in the
ESCAP region, a Sri Lankan, presently domiciled in Australia, Suri
Ratnapala, Professor of Law at the University of Queensland.
He has sent in a very comprehensive opinion about the public
discussion that is titled ‘The First Amendment of the Constitution and
its Applicability on the President’.
Ratnapala has written an opinion clearly and in the most simplest
language, discussing the present situation. According to him;
1) President Mahinda Rajapaksa is disqualified from seeking a third
term during the period January 26, 2010 to September 9, 2010, when the
Eighteenth Amendment became Law.
The contention of Ratnapala was that “the incumbent President’s
disqualification, during the period between the date of his second
election and the date of enactment of the 18th Amendment is clearly
something ‘suffered under the repealed written law’ within the meaning
of section 6 (3) (a), of the Interpretation Ordinance.
It may also be regarded as ‘a penalty acquired or incurred, under the
repealed written law, within the meaning of Section 6 (3) (b) of the
Ordinance. Alternatively, the repeal of the disqualification may be
regarded as extinguishing a constitutionally vested public right.
The 18th Amendment contains no express provision to the effect that
the 18th Amendment shall affect the past operations of Article 31 (2)
and Article 92 (c).
In other words, the 18th Amendment has not, by express word, sought
to remove, retrospectively, the disqualification of President Rajapaksa
from being elected to a further term of office as President”. The
disqualification remains effective.”
According to Prof. Ratnapala the incumbent President’s
disqualification is something “suffered” under the repealed written law
or under Section 6 (3) (a) of the Interpretation Ordinance or penalty,
incurred under Section 6(3) (b).
Dr. Sunil Coorey, who was one of the distinguished panelists, invited
by the Bar Association, said that he did not agree with the contention
of Prof. Suri Ratnapala that the President has incurred a penalty under
section 6 (3) (b) of the Ordinance.
He said that under no cannon of interpretation could one possibly say
that the President has acquired a ‘penalty’ under the Interpretation
It is also interesting to note how the Judges tend to react when
matters involving highly political issues, like the Presidential
Election comes before them. It is one matter which involves the entire
nation and almost every single voter.
When the whole country is waiting to vote for their preferred
candidate, at the Presidential Election and it is no doubt that
President Mahinda Rajapaksa is one of the front runners for the
Presidency, will any Court ever deprive him of contesting for the
It will be a matter of public policy and the 18th Amendment was
enacted with the sole purpose of removing any disability for Mahinda
Rajapkase to contest for the third time by operation of Article 31 (2)
and 92 (c) of the Constitution. When the elite of Colombo were arrested
as conspirators in the first Coup case, the then Governor General
amended certain provisions of the Prison’s Regulations. The Governor
decreed that; “provisions of part IX, of the Prisons Ordinance shall not
apply to persons detained under the Emergency Regulations”.
A galaxy of President’s Counsels, with G. G. Ponnambalam, E. G.
Wickremanayake, H. W. Jayawardena and D. S. Jayawickrema appeared for F.
C. de Saram and others. It was contended that on behalf of the coup
suspects, that the prison’s regulations, which permitted visits and
other benefits, was a right they acquired when they were in prison.They
contended that subsequent regulations, prohibiting these regulations to
be applied to those who were suspects of the first Coup case, did not
have any words that would denote it would act retrospectively.
Therefore, within the meaning of Section 6 (3) of the Interpretation
Ordinance, part IX of the Prison’s Ordinance should continue to apply as
a right that had been acquired before the repeal of the relevant
provisions of the Prisons Ordinance.
But, Sansoni J. held that the application for writ of mandamus will
not be granted if it is initiated after the new regulation has come into
operation even though the applicant would have been entitled to the
benefits of the Prisons rules, if he had filed the application for
mandamus prior to the date the new regulations were enacted; in such a
case, such a person cannot be said to have acquired a right under the
Therefore, whether President Rajapaksa has suffered a disability or
acquired a penalty, it cannot prevent him from contesting for a third
It does not definitely come within the meaning of the word “penalty”
or that he “suffered” from the operation of Article 31(2) or Article 92
The other contention that by the 18th Amendment, the franchise of the
people, guaranteed under Article 4 of the Constitution have been eroded
as the voter he exercised the right he knew that the President Mahinda
Rajapaksa would not be able to contest again.
To this objection I would refer to the judgment of Dr. Shirani
Bandaranayake on the 18th Amendment. “It is to be noted that the
aforesaid Article 4 (e) of the Constitution refers to the franchise of
the people, and the Amendment to the Article 31 (2) of the Constitution,
by no means would restrict the said franchise.
"In fact, in a sense, the Amendments would enhance the franchise of
the people granted to them in terms of Article 4 (e) of the Constitution
and the voters would be given a wide choice of candidates, including of
a President, who has been elected twice by them. "It is not disputed
that the President is directly elected by the People for a fixed tenure
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 Supreme Court has very clearly referred to the removal of the
disqualification that has been imposed by Section 31 (2) of the
Constitution and permits a President, who had been twice elected by the
people, to contest again and the only President who had been twice
elected by the people who would seek a third term is none other than