Monday, 8 September 2014

Sarath Silva’s convoluted arguments against a third term of office to the President Mahinda Rajapakse do not hold water.

Sarath Silva the  retired Chief Justice puts forward convoluted arguments against a third term of office for the Prersident Mahinda Rajapakse to attract the attention of the Opposition  and  qualify  for  nomination by them  for the next Presidential election as  their common candidate.

A third term  of office as the President of Sri Lanka for Mr. Mahinda Rajapakse appears to be the most contested issue  locally  by the opposition to the present Government of the President Mahinda Rajapakse, and  outwardly by  those Tamils in the diaspora still liking their wounds after the elimination of terrorism in Sri Lanka.  It would be for the politicians of  the opposition to be  left out in the cold for  another extended period. Therefore they try to hold onto any straw to stop themselves from getting carried  away in the present political deluge.

It is also a defeat for those anti-Sri Lanka countries of the West  who would see in the re-election of Mahinda Rajapase for a third term the slipping from their clutches the chance of the  benefits they are  hoping to have from a West friendly President of the opposition, from the  strategic position  of Sri Lanka in the Indian ocean.

Sarath Silva thinks that more complex the  arguments he makes against  the President Mahinda Rajapakse’s  third term run , more they become tempting  fodder for the consumption  of the ambitious political buffalos of the opposition.  However, these arguments only make the present political climate more cloudy.  At the end the interpretation of the law is in the hands of the Supreme Court.  Though the Supreme Court too is not infallible as it was seen in the wrong interpretation of Article 107(3) in the case of the Impeachment of the Chief Justice Shirani Bandranayake.

Sarath Silva’s argument is that Mr. Mahinda Rajapakse is disqualified from  contesting  a third time under Article 31(2)of the 1978 Constitution of Sri Lanka under which he was elected for the first and the second terms. 

He argues that the 18th Amendment to the Constitution was passed after Mahinda Rajapakse was sworn in as the President  for the second time, therefore the Amendment would apply to future presidents but not for him to be re-elected, as his Presidency is a child of the Article 31(2) of the 1978 Constitution of Sri Lanka.

But at that time Mr.Mahinda Rajapakse was elected President, the 18 Amendment was not even envisaged , then how can the President Mahinda Rajapakse be  put into the  bracket of  “President elected before the 18th Amendment” merely to deny him the right to appeal to the people for  a third mandate.  It is for the people to decide whether he should be rejected or re-elected for another term, to deny the people that right juggling with legal terminology is not democratic to say the least. 

The Constitution has to be people friendly tampering it otherwise to deny the people a right under the Constitution is to take the Constitution outside the democratic System of a government of the people, for the people, by the people.

The 18th Amendment was introduced to rectify the anomaly of not allowing a (popular) President in place to seek elections for another term.   The election of a President is a right of the people and if the people wants the President in place to continue for a further period it is their right that would be usurped by interpreting the Constitution  with the 18th Amendment  to deny  the people to have a  President of their choice.

To support this interpretation of the 18th Amendment Sarath Silva  sights  Article 6 of Sri Lanka Interpretation Ordinance, and adds that the Amendment cannot be applied retrospectively in Law as the law takes effect  in the future.

The Article 6 is not applicable in the present case of allowing a President to ask the People for a mandate to serve them for a third or more terms of office, as Article 6 is to be applied as a penalty for an offence. Is asking for a third term under the 18th Amendment to the Constitution  a punishable offence ?  Sarath Silva merely brings it up to complicate the issue.

Sarath Silva’s argument that the President Mahinda Rajapakse when he was elected for the second time was automatically disqualified to contest for a further term under Article 31(2) should be viewed differently, that is if in the course of the Presidency of Mahinda Rajapakse a valid change has taken place in the Constitution of Sri Lanka the benefit of that change should come to the President in place, otherwise it would be a denial of justice the benefit of which would be to the people. 

The Constitution cannot be interpreted taking it away from the people for whose benefits the Constitution exists.  The Supreme Court that would be called upon to interpret the relevant provisions of the Constitution should not argue on dry legal theories, but  by viewing  how the changes to the Constitutions should be appropriately interpreted without depriving the people the benefits that they would acquire from having the same President elected for a further term to continue the work that has been acclaimed by the people as beneficial to them.

An Amendment to the Constitution changes the whole aspect of the Constitution and the Constitution which was passed on 7 September, 1978, is no more the same to day with its 18 Amendments.  The benefits accrued through the Amendments to the Constitution should be equally shared by the people and therefore the benefits from the 18th Amendment cannot be denied to the current President on the ground that he was elected President before the 18th Amendment was passed, and that he is a “child” of the Article 31(2) of the “ancient” Constitution of 1978.  The 18th Amendment changes radically the Article 31 (2) of the September,1978 Constitution of Sri Lanka.

The Article 31(2)  which read “  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.”, has now been amended to read, “ Notwithstanding any thing to the contrary in the preceding provisions of this Chapter, the President may, at anytime after the expiration of four years from the commencement of the current term of office by proclamation, declare his intention of appealing to the People for a mandate to hold the office.” (emphasized)

This contradicts Sarath Silva’s contention that the President Mahinda Rajapakse  having been elected before the introduction of the 18th Amendment is bound by  the Article 31(2) of the Septemnber,1978 Constitution.  But  under the provision of the 18th Amendment President Mahinda Rajapakse  elected  before the  introduction of the 18th Amendment is nonetheless well entrenched within the terms of the  18th Amendment and is qualified to demand the People for a mandate for a third term.

This provision  which allows the President to declare his intention of seeking election for a third term is by virtue of his being the “ currently sitting President”.  But not withstanding the provision to seek election after the expiration of four years from the current term of office, if the President Mahinda Rajapakse were to continue his presidency until November, 2016 the end of the period for which has been elected, then there would be no possibility for any one to contest his qualification to contest the Presidential elections for a third  time or more.

Sri Lanka is not a Western Democracy.  The democratic system applied to our country should go along with our culture and the sentiments of the people. We should not rule the people by abstract law, interpreting it  unconcerned with the aspirations of the  people. An election of a President or peoples’ representatives is the expression of the peoples’ choice. 

For that the people should be allowed the largest number of choices from which to choose without restricting them to an artificial choice selected by the application of the rigid law.  That would be a denial of the right of the peoples’ choice which would be to   step out of democracy applying legal interpretations to restrict the people of their free choice of their President or their representatives.

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