| by Sarath Wijesinghe
( Views expressed in this article are author own
ELIGIBILITY OF THE INCUMBENT PRESIDENT TO CONTEST ANOTHER TERM
( October 12, 2014, Tel Aviv, Sri Lanka guardian) There is a school of thoughts of a minority group that the President is restricted in coming forward for the third term on the grounds that the prohibition on the 17th Amendment continues to be applicable because the 18th Amendment does not especially provides so. No law should be applied specially for few named individuals. In Sri Lanka only two persons elected for two consecutive terms are the previous two Presidents. Argument to specify their two names in the 18th amendment is neither logical nor factual or legal.
The incumbent President is not qualified to be elected President for a third term under the then existing provisions of the Constitution. It is in order to correct the position that the 18th Amendment was passed by Parliament on the 9th September 2010- seven months after President Rajapaksa had completed the second term. The 18th Amendment repealed Article 31(2) of the Constitution and thus today a person who is twice elected as President can be elected any number of times as President. This disqualification which hitherto existed has been abolished to make the way for all Sri Lankans to take part in the elections including the two previous Presidents. Thereby the previous Presidents fall under the 18th Amendment and any Sri Lankan who can fulfil the requirements is free to contest elections with no restrictions whatsoever. What matters is the intention of the legislature which is supreme with powers to the Judiciary to interpret for any clarifications or doubts independently. There is no ambiguity or doubt as to the qualifications of the sitting President to run for another term.
Argument of some groups and individuals is that the 18th Amendment does not remove the disqualification to contest by any person before it is abolished, has not been specifically done so for the Previous Presidents in power for two terms. It is with deliberations of four years on the interpretation that this issue is suddenly surfaced when the act is to be tested when there having been ample opportunities to do so previously. The objections should have risen at the appropriate time specified by the Constitution and it is now too late to take it up for political and personal advantages and vengeance. Laws can be inert and not is use for long periods until it is activated on new circumstance. Now it is the time for the implementation of the 18th Amendment if and when the incumbent President declares intention come forward for the third term. Laws are enacted for the people by the Legislature to be applied equally, not targeting or specifying an individual or a group. Therefore the argument of the group and some individual, that 18th Amendment will apply to only a person who not having been elected twice already is not tenable logical and legal.
It is clear on the legality and the intention of the legislature and the judiciary based on the following extracts of the case on the 18th Amendment as follows
“It is to be noted that the aforesaid article 4(e) of the Constitution refers to the exercise of the franchise of the people and the amendment to article 3(2) of the Constitution by no means would restrict the said franchise. In fact in a sense, the Amendment would enhance the franchise of the people granted to them in terms of article 4(e) of the Constitution since the voters would be given a wide choice of candidates including a President who had 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.” This covers all array of doubtful and questionable areas and the answered the arguments on the retrospective issue and the time the act to be activated, by this landmark pronouncement of the Highest Echlin of the Judiciary in Sri Lanka combining the wish and will of the people of the country. Justice Shirani Bandranayaka, Justice K Siripavan, Justice S.I.Imam, and Justice R.K.S. Surash Chandra, were the Supreme Court Judges upheld the decision stating that 18th Amendment was a good thing that will strengthen the franchise of the people of the country. The 18th amendment was passed with 2/3rd majority and no legal objections or barriers.
The Constitution only deals with the eligibility of the President to contest the election. It makes him legally eligible offer himself for elections, whether he succeeds or not is up to the people. That is what the Supreme Court has ruled that the Amendment expands and strengthens the franchise and it is democratic. Nobody is forcing to the people to elect anybody, only the legal bar to contest have been legally removed paving the way for exposing all contenders in the arena of political exercise for the election of the next leader of the Country.
WHAT IS 17TH AND 18TH AMENDMENT TO THE CONSTITUTION
“Article 31(2)- No person who has been twice elected to the office of President by the people shall be qualifies thereafter to be elected to such office by the people”
“18th Amendment to the Constitution has amended the above provision by close 2 which declares - “The Constitution of the Democratic socialist Republic of Sri Lanka is hereby amended in article 31 thereof, as follows - by the repeal of paragraph two of that article 31: close 15 of 18th Amendment repeals paragraph(c) of Article 92 above.” Thereby the defect is taken away to contest any Sri Lankan who is qualified to contest otherwise is eligible to go before the electorate any number of times to ascertain the wish and will of the people.
Is it now clear legally morally and the eyes of the average citizen the meaning and the intention of the legislature approved by the required majority of the legislature with no legal or any other forms of objections until some interested groups and for individuals will fully attempting to spoil the minds of the people and the media on the week argument on the matter which has been decided four years ago.
RETROSPECTIVE OPERATION AND THE DATE OF OPERATION OF LAWS IN SRI LANKA
The argument of the proponent’s proposition is that the stigma continues for the reasons stated above, and the piece of legislation will not apply retrospective with no date it will become operational. Many laws are silent until it is operation by activation. In this instance the operational date is the date the President instructs the Election Commissioner to take steps for the election of a new President. Laws are enacted to all for all times, thereby the 18th amendment applies to all equally at all times. If there is an issue left the Supreme Court will clarify it at the appropriate time. There is no need to take political advantage of the matter which is to be decided by the Court.
The Constitution is to be interpreted as it exists at the time. It is a mistake to apply principles that is relevant to the construction of criminal statutes, to the Constitution.
According to landmark decision in USA of Calder Vs Bull (1798) the ban on the respective applicability of laws relates only to criminal and not civil matters. In the case of celebrated Judge Lord Dennings had said that the rule that an Act of Parliament is not to be given restrictive effect does not apply to states which only after the form of procedure of the admissibility of evidence. In the case of 18th Amendment the Supreme Court which is Supreme and the Legislature which is Supreme and Sovereign has decided the Supreme Law superseding all subordinate legislation. There is no provision to appeal against the Supreme Court in Sri Lanka unless on extremely exceptional circumstances by way of revision..
INTEROPERATION OF THE CONSTITUTION AND THE INTEROPERATION ORDINANCE
USA has developed rules on interpretation along with rules relating to statutory interpretation adopting an “Expensive and Broad” interpretation, so that the Constitution can adapt to changing and conditions. It has been held in many cases that the Constitution must be interpreted in a manner in which “it will work” and not in a way “ “it can perish” encapsulating the maxim – ut res magis veleat quam pereat ( see McCulloch Vs Maryland (1819) USA and the barrage of cases in the Article by D. Laksiri Mendis on the title “Is President Mahinda Rajapaksa Legally Entitled for a 3rd term” on Sri Lanka Today on 22nd Sept 2014 with lot of appreciation to him in assisting us in these deliberations.
Following the argument of Mendis “the provisions restricting the tenure of Presidency for two(2) terms under the 1978 Constitution has been amended by the legislative Drafter by using the “Textual Method”. In Textual amendment, the provisions usually date back to the date on which the principal act comes into force. In this instance, it would be the date on which the 1978 constitution was promulgated, unless there is provision to the contrary effect. In Commonwealth Countries there are many cases in which the Courts of Law have held that retrospective effect can be “express” or “implied”. Interpretative rule that restorative application can arise by necessary or distinct implication Is recognized by Maxwell on interpretation of Statues ( 8th Edition), Craies on Legislation (9th Edition) and by the landmark article of Prof. Elmo Dridger on the Retrospective Operation of Statues( Canadian Bar Review, 1950. – Laksiri Mendis-
Our Interoperation Ordinance of 1901 is outdated to deal with modern compiles constitutional interpretations and need a modern approach in par with the Commonwealth and World trends leaving the Supreme Court with full powers to Interpret and apply the subordinate laws in conformity with the Modern Laws and “Laws of Necessity”.
IS THE ARGUMENTS PUT FORWARD ARE LEGAL OR POLITICAL
There appear to be no legal basis on the argument rather than speculation and hypothetical visualization of interpretation of decided cases by the Supreme Court and Legislature. Arguments go back to how the second term ended of a previous President on article 31(30(D)(1) of the Constitution in a case requesting clarification from the Supreme Court in a Fundamental Rights Case in an application by Most Rev. Omalpa Sobitha Maha Nayaka Maha Thero. It is still not sure for anybody the arguments meted and how and on what basis the decision was made. There were such barrage of cases decided in a similar way on political and personal considerations based on rumours and hearsay evidence outside courts leaving black marks on the Great History of Supreme Court of the history of 212 years of existence.
Extracts of an interview previously given below indicates, that the political nature and the intention of rising issues at this juncture. “If you believe that President Rajapaksa is going to be there then only will a problem arise. We have to create a situation where we can challenge him. DM (10.10.2014). This indicates the political basis and the intention of the group of rubble rousers for the smooth running and the developments ahead with peace and stability.
American President Franklin Roosevelt won four consecutive terms from 1933 to 1945 to steer America to new heights through the Great depression and the Second World War. Now that we have eradicated terror that engulfed over three decades completely with the blood and sweat of the heroic Security Forces, it is time and wish of the for people to elect President Rajapaksa for another term/s to fulfil the unfinished duties to the Nation for development and prosperity of the people .
INTERNATIONAL POLITICAL AND NATIONAL IMPLICATIONS AND DIMENSIONS
Currently Sri Lanka is one of the few - if not the only- most stable and peaceful countries in the world when considering the turmoil, bloodshed and instability witnessing daily right round the “GLOBE”. We went through the agony of war the world declared unwinnable politically or militarily, when the successive governments have miserably failed to bring peace to this beautiful and Gifted Island. Even the opponents to the President will not dispute that it is the dedication, vision, and the strategy of the President and the Group around him and the Constitutional Powers and Mandate vested in him Under Executive Power that brought us “Peace and Stability’ we enjoy with repaid development and progress with Close and powerful friends in the international arena.
We are a unique Great Nation in every sense with a Great History to follow based on Historical Religious values and not necessarily the Western values, norms and systems imposed on us. We survived for thousands of years so close to the Giant India without running over by regional or world powers, as has been in many countries by foreign regional and international domination. Our Supreme Court and the People are competent to take our own decisions based on our Great Historical teachings and Experiences coupled with the knowledge acquired through the experience on foreign domination.
We are at a cross road of one of the most decisive and brightest eras of our history with the able leadership and the guidance of the incumbent President as a Regional and an emerging world leader leading the Nation to prosperity and glory with enemies a targeting us with jealousy and vengeance for no reason or for us being fearless and leading our affairs in our own way. Let our Future Generation given the opportunity to enjoy and make use of our hard earned freedom and walk towards prosperity and development to be the “Wonder of Asia” in the “Hub of South Asia”.
( The writer is the Sri Lankan envoy to Israel and Palestine)