President Rajapaksa can contest a third term

By Hemantha Warnakulasuriya

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.

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.

Solution

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.

Public forum

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;

Written law

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.

Front-runner

He said that under no cannon of interpretation could one possibly say that the President has acquired a ‘penalty’ under the Interpretation Ordinance.

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 Presidency?

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 Prisons Ordinance.

Therefore, whether President Rajapaksa has suffered a disability or acquired a penalty, it cannot prevent him from contesting for a third time.

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 (c).

Amendment

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 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 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 Mahinda Rajapaksa.