President has the legal right to contest a third term

by M.W. Padmaraji Jayasundara

At present, one of the major topics which is discussed in many field is whether President Mahinda Rajapaksa can contest a third term. Highly involved legal theories, interpretations and arguments are forwarded against President Rajapaksa contesting a third term. All these arguments focus on the 18th Amendment to the 1978 Constitution of Sri Lanka.

At the very ab initio there are many aspects to this matter. The first step in the process of contest is that a person must get qualified to become an elector. Then he has to comply with some more requirements to qualify to contest the presidency.

Most certainly there is an Amendment to the Constitution that is the 18th Amendment which abolishes the number of terms for contest. Therefore, any person, who fulfils these needs has a legal right to contest presidency. Accordingly, it is quite evident that the incumbent President Rajapaksa has the legal right to contest which is most certainly beyond any question.

Article 89 of the Constitution provides many disqualifications, for a person not become an elector.

Article 92 of the Constitution, provides many qualifications for an elector to comply with, if he is to be elected, to the office of President.

Of course these Articles have gone through Amendments. Any person who wish to contest the office of President will have to comply with these needs.

No questions had arisen regarding the number of terms a person couldcontest the Presidency. The only question which is emphasised is that whether President Rajapaksa can contest for a third term.

The crux of the question focuses on the 18th Amendment to the Constitution.

The 18th Amendment to the Constitution removed the bar which limited the number of terms of contest.

Such as, before Amendment Article 31 (2) of the Constitution stated:

(2) No person who has been twice elected to the office of President by the people shall be qualified thereafter to be elected to such office by the people.

Article 31/(2) is completely repealed by the 18th amendment.

Article 31/(2) is repealed

Article 92 (c) is also completely repealed which is connected to the term barrier for contest.

The 18th Amendment which was introduced on September 9, 2010, completely removed the constitutional restriction of the sitting President for re-electing after a second term. The Supreme court which consisted of a Bench of five judges up held the new law.

After the 18th Amendment, in calculating time period of the sitting President said as "....from the commencement of his current team of office."

According to these Articles of the Constitution and the 18th Amendment it is quite clear that even a question cannot arise regarding President Rajapaksa contesting a third term.

Article 3 of The Constitution states that.

(3) In the Republic of Sri Lanka sovereignty is in the people and is inalienable, sovereignty, includes the powers of Government, fundamental rights and the franchise.

Article 4/e states: "The franchise shall be exercisable at the election of the President of the republic..."

It is submitted that by way of removing the Constitutional barrier people get a wider scope in casting their votes.

Chapter xiii of the Constitution states that Article 85 (2)

"The President may in his discretion submit to the people by referendum any Bill...."

Article 86: "The President may subject to the provision of Article 85, submit to the people by referendum any matter which is in the opinion of the President is of national importance."

These two Articles establish the direct constitutional connection, which a President has with the people and how powerful, strong and wide the opportunity which the people have in exercising franchise.In the light of these situations it is submitted that the people have a wider opportunity to use, franchise, when there is a President and the number of terms of contest should not be taken into consideration.

Article 125 of The Constitution states:

Article 125/(1) - "The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of The Constitution...."

President Rajapaksa who has done so much for the country contesting the third term will be favourably considered by the people on many grounds. Such as ending the Northern and the Eastern problems, maintaining peace, economic development, improvements in the country ie. harbour, airports, road development and uplifting the living standards of needy people.

On the other hand, if any Executive President contests a second term or a third term, people will decide whether he should or should not be elected again on the work he has done. The incumbent President has done so many beneficial things for the country. Therefore, he will be successful the third time also.

The unnecessary dispute that President Rajapaksa cannot contest a third time, is per se evidence that he will win the third time also.

The writer, an Attorney-at-Law is a Lecturer in Law.