| by Nalin de Silva

( September 17, 2014, Colombo, Sri Lanka Guardian) We will return to "Knowledge as construction" may be week after next as the country is in the midst of politics with world leaders visiting Sri Lanka and people going to the polling booths in a few days in Uva. Philosophy has not taken a back seat as even politics is not dissociated from the former. Even in the case of the third term of Mahinda we are interested in a construction due to Sarath Nanda Silva, which had escaped his mind for about five years after the eighteenth amendment became part of the Supreme Law of the country. There have been a number of articles written for or against the argument constructed by Sarath Silva, I myself having taken part in the game. As construction is a non ending process until one attains Nibbana, in my Bududahama, there will be more articles on the subject in the press even after the Supreme Court gives its verdict on the issue.

People abide by the Supreme Court decision not because it is the "correct decision" but since there is no higher court they can appeal to even if they do not agree with the decision. The worldly (laukika) decisions are taken by one or few people whether in the Judiciary or in an ordinary working place and it cannot be said that the correct decision has been arrived at. However, we have no alternative but to go before some worldly authority when we feel that an injustice has occurred. If Sarath Silva were the CJ there would be any doubt about his decision on the third term of Mahinda Rajapaksa.

Sumanthiran, the TNA MP has said that Sarath Silva may be working in connivance with the JHU with ulterior motives but we are not interested in them, though Ven. Athureliye Rathana Thera has admitted that he is in the process of drafting a new Constitution with the help of Sarath Silva. It is the present constitution we are interested in whether one is in agreement with the eighteenth amendment or not. In any event it is a well known secret that Ven. Rathana Thera does not see eye to eye with the minister Champika Ranawaka both of whom were with the JVP in the eighties in their early student days.

Let us analyze the situation prior to the eighteenth amendment as far as the third term of a President was concerned. There were two articles that should draw our attention in this regard. The first is Article 31 which reads as follows.

31. (1) Any citizen who is qualified to be elected to the office of President may be nominated as a candidate for such office -

(a) by a recognized political party, or

(b) if he is or has been an elected member of the legislature, by any other political party or by an elector whose name has been entered in any register of electors.

(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.

The second Article that warrants our attention is 92 which states:

92. Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless he is subject to any of the following disqualifications -

(a) if he has not attained the age of thirty years;

(b) if he is not qualified to be elected as a Member of Parliament under sub-paragraph (d), (e), (f) or (g) of paragraph (1) of Article 91 ;

(c) if he has been twice elected to the office of President by the People; and

(d) if he has been removed from the office of President under the provisions of sub-paragraph (e) of paragraph (2) of Article 38.

Articles 31(1) (2) and 92 have to be read together in order to obtain a clear picture of the situation. Now in Sri Lanka three people were elected twice to the post of Presidency, namely JR Jayewardene, Chandrika Kumaratunga and Mahinda Rajapaksa. They were all elected twice before the eighteenth amendment, and let us see what would have happened if they decided to contest (nominated by a political party) a third time. In this case we have to consider the cases of JR Jayewardene and Chandrika Kumaratunga separately from that of Mahinda Rajapaksa. In the case of the former Article 31(1) was not made use of and no political party nominated either of them for Presidency for a third period, whatever the reason may be. As such the Election commissioner did not have to decide on the eligibility of either of them and there was no need for a Sarath Silva to move the Supreme Court on the eligibility issue. The Presidential Elections were held for a second time since they were elected without any political party nominating them for Presidency. In fact in the case of Chandrika Kumaratunga Presidential elections were held in 2010 for a third time since she was elected President for the first time.

If Chandrika Kumaratunga had been nominated by a political party in 2005 or 2010, the Commissioner of Elections or the Supreme Court as the case may be would have disqualified her acting under Article 31(2) and 92. However, what is important here is to note that unless a political party nominated her for the Post of presidency there was no way either the Commissioner of Elections or the Supreme Court deciding on her eligibility, as an individual, to contest at the Presidential Elections for a third time.

Sarath Silva’s position is that according to Article 31(2), Chandrika Kumaratunga became disqualified to contest in 2005 or subsequently, even before these dates were fixed, the day she was elected as the President for the second time, even before the day she took oaths for the second time as the President. However, 31(2) cannot be read in isolation and it is tied up with 31(1) and 92. Sarath Silva is of the opinion that when Chandrika Kumaratunga, JR Jayewardene and Mahinda Rajapaksa were elected for a second time there was no eighteenth amendment and their "fate" had been sealed by the pre eighteenth amendment constitution. The eighteenth amendment repealed 31(2) and 92(c) and we are now in a different world. However, Sarath Silva says that eighteenth amendment as far as the eligibility criteria are concerned is not valid with retrospective effect, and hence Mahinda Rajapaksa cannot contest Presidential Elections in 2015.

However, the question does not arise of Mahinda Rajapaksa contesting Presidential elections as it is a question of a political party nominating him for the post of presidency in 2015. Mahinda Rajapaksa on his own is not made ineligible as eligibility criteria become operative with a political party deciding to nominate him for Presidency for a third time. Even in the case of Chandrika Kumaratunga a political party is not debarred from nominating her for presidency in 2015, and we would have to await decisions by the commissioner of elections and/or the Supreme Court in case a political party does so, on her eligibility.

Now in the case of Chandrika Kumaratunga, even if one were to argue that she became disqualified to contest in 2005, before the eighteenth amendment, the way the constitution was operative then, after the eighteenth amendment the "obstacles" have been removed. Sarath Silva’s argument is on the criteria as laid down in the constitution that is operative at the time of election to the post of President a second time, and this implies, if the argument is valid, that 31(2) has to be on elections held after the date of election for the second time under the pre eighteenth amendment constitution. Thus even if we go by Sarath Silva’s argument, and assuming that it is valid, Chandrika Kumaratunga would not have been eligible to contest only in 2005 or 2010. However, after the eighteenth amendment she is qualified and it is not a case of eighteenth amendment being made valid with retrospective effect.

In the case of Mahinda Rajapaksa the case is very much clear. There had been no third time Presidential elections since 2004 and the eighteenth amendment has come before such third time elections. Even if one were to argue that in the case of Chandrika Kumaratunga a third time Presidential election was held before the eighteenth amendment, in the case of Mahinda Rajapaksa no such third time presidential elections had been announced under the pre eighteenth amendment constitution. The next Presidential Elections will be held under the post eighteenth amendment constitution and what is valid as far as eligibility criteria is the constitution after the eighteenth amendment and not the pre eighteenth amendment constitution that was in operation at the time of election of Mahinda Rajapaksa as the President for the second time. Chandrika Kumaratunga was not nominated by any political party in 2005 or 2010 as probably the political parties understood the consequences. However, the pre eighteenth amendment constitution belongs to the past and if at all, she would not have been disqualified to be nominated as a candidate at Presidential elections held before the eighteenth amendment. If a political party is interested she could be nominated for the post of President in 2015, as the word thereafter in 31(2) refers to elections held when 31(2) was operative and not thereafter. The words are valid only in a context and they have to be interpreted in that context. They are relative and not absolute.