By Sandun A Jayasekera
The Bar Association of Sri Lanka (BASL) has sought legal opinion from foreign constitutional experts on whether the
Sri Lankan Constitution allowed President Mahinda Rajapaksa to contest for a third term, a senior member of the BASL said yesterday.
"Doubts about President Rajapaksa’s constitutional rights to contest more than on two occasions developed after retired CJ Sarath N. Silva said he would challenge its legality "
BASL President Upul Jayasuriya said expert legal opinion was extremely vital before anyone could challenge the declaration of a presidential election by the Elections Commissioner in the wake of the President deciding to call a presidential election and contest for a third term before completing his full term of six years which ends in November 2016.
Speculation is rife that President Rajapaksa was mulling the idea to call for a presidential election after completing four years of his term on November 19 this year. Under the Constitution a President is entitled to call for a presidential election after completing four years of his or her term of office.
“Yes, we have sought legal opinion from a Professor of Constitutional Law in a foreign university on the constitutionality of President Rajapaksa contesting for a third time. We are awaiting his opinion on this issue before a final decision on the course of action we should take on this matter,” Mr. Jayasuriya said.
He told Daily Mirror the opinion of Sri Lankan constitutional experts would also be sought before a final decision but did not elaborate on whether the legal action would be a collective act of the BASL or by a team of lawyers challenging the declaration of a presidential election. “All depends on the opinion of foreign and local constitutional experts and we expect a response from them shortly. However, it is crystal clear the there is a grave constitutional issue here,” Mr. Jayasuriya said.
The doubts about President Rajapaksa’s constitutional rights to contest more than on two occasions developed into a debate in social and political circles and in the media after retired Chief Justice Sarath N. Silva said he would challenge the legality of President Rajapaksa contesting for a third term. His contention is that the 18th Amendment to the Constitution was enacted on September 9, 2010 and President Rajapaksa was elected for the second term on January 27, 2010. Therefore, the 18th Amendment does not apply to President Rajapaksa’s Presidency and as a result he cannot contest in a Presidential Election again.
Mr. Silva argued that the 18th Amendment did not have any retrospective effect and came into effect only from September 9, 2010 onwards.
Article 31 (2) of the Constitution says, “No person who has been twice elected to the office of the President shall be qualified thereafter to be elected as President.”
“He should have removed this clause before taking oaths and implementing the 18th Amendment. He should have made it clear at the time he took oaths that he could contest for the Presidency any number of times. It was a dishonest Amendment to the Constitution,” Mr. Silva declared in an interview given to in July.