| by Kusal Perera

( August 27, 2014, Colombo, Sri Lanka Guardian) The original interview published in Sinhala is attached for any reference needed.

Former CJ Sarath N. Silva on 18 Amendment to the Constitution

1. Two term restriction on Presidency is vital for democracy.

2. JRJ's first amendment to Constitution said two consecutive presidential terms and no more for any one. But after a lapse, another election was possible.

3. This was made strong and clear in the 1978 Constitution. Thus 31.2 of the Constitution says any one elected by the people as President for 2 consecutive terms, stands disqualified thereafter, for election.

4. This clearly makes the person elected for the 2nd term immediately disqualified in seeking a 3rd term.

5. Therefore President Rajapaksa became Constitutionally disqualified for yet another term, on the very day, he was elected for a 2nd term, on 27 January, 2010 itself.

6. The 18 A was passed in such context and that stands as an important Constitutional disqualification.

7. On September 09th the 18A removed section 31.2 that restricted a twice elected president from seeking elections again. But by then President Rajapaksa was already disqualified from contesting again.

8. This brings out the question whether this amendment has retrospective effect in implementation. Usually law is for the future and for any future President, this is effective.

9. Section 6 of the Interpretation Law says, any such amendment does not remove disqualifications or punishments previously imposed by law. For such previous disqualifications or punishments to be annulled, another new mention to that effect must be included.

10. In this case, no such mention is included. Therefore the disqualification stands.

There is therefore an issue if President Rajapaksa gets ready for a 3rd term, calling for a presidential election after 04 years in his 2nd term.

A. Section 31 of the Constitution says the incumbent President can call for an election after completing 04 years. But it does not say if it includes the 2nd term as well. Therefore, in the context of a restriction on presidential terms for 2 consecutive terms, this could be about the 1st term period.

B. There is some confusion here in calculating the durations. But those who did the draft for the 18A had forgotten to clear that.

C. Therefore in such context, if President tells the Election Commissioner he wish to seek re election for a 3rd term after completing 04 years from his 2nd term, any citizen can challenge the Election Commissioner, saying the EC has no such powers. That challenge in Courts should be done before an election is fixed and held.

But President Rajapaksa can continue till his 2nd term expires in November 2016. In such instance, the parliamentary election has to be held before April 2016. That is before the presidential polls.

(Interview with former CJ Sarath N. Silva, published in the Sunday Lankadeepa of 24 August, 2014 )