Sarath Silva as constitutional expert will personally file a petition
Judges, Police, Elections Commissioner must cut themselves off from the shackles of Rajapaksa
The 212-year old Supreme Court is not a creature of this President
While the question whether President Mahinda Rajapaksa could contest the Presidency for the 3rd term has become a hotly debated argument in legal and political circles, former Chief Justice and Constitutional expert, Sarath N. Silva says that President Rajapaksa has no right to contest the next Presidential Election. Describing why the 18th Amendment came into being, Mr. Silva says it is a dishonest amendment and was introduced for the benefit of President Rajapaksa alone.
Excerpts from the interview:
Q : What is the backdrop to the 18th Amendment?
The 18th Amendment is the only amendment made by President Rajapaksa although he had a two-thirds majority. This amendment was not done for the benefit of the people of this country. It did not create economic opportunities, improve people’s rights or solve the ethnic problem. It was done solely to entrench President Rajapaksa in power. I will tell you why I say that. First the 18th Amendment was enacted on September 9, 2010. Now President Rajapaksa got elected for the second term on January 27, 2010. When he got elected in January 2010, according to the interpretation of the Constitution given by the Supreme Court of which I was the Chief Justice in the Chandrika Bandaranaike Kumaratunga 2005 election case, his term of office would have started on that day itself. And he should have taken oaths immediately because whatever conditions were brought in by President J. R. Jayewardene earlier, according to the Constitution, the President will be elected by the people and shall hold office for six years. So, on this basis Chandrika’s term ended after six years. This was made clear and I did not give that ruling to help anyone. Starting from December 1999, the Presidency came to an end in December 2005. On that ruling President Rajapaksa’s term would have started in January 2006. He sought another opinion from the Supreme Court and the next Chief Justice gave a ruling that it could go on till November 19 based on some contorted reasoning which no-one understood. But before starting the term, he made this amendment. He did that because he wanted to remove the inclusion of an article in the Constitution which limited the number of terms a person can contest the Presidency to two occasions.
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 wanted to remove this clause before he took oaths and passed the 18th Amendment. He wanted to clear the text and to say that at the time he takes oath he could contest for the Presidency any number of times. It [the 18th Amendment] was a dishonest amendment to the Constitution.
Q : What effect did this move have on the 17th Amendment?
The second thing he did was to remove all the provisions of the 17th Amendment. Now, if you take the 17th Amendment which was passed in October 2001, there were so many provisions like the establishment of the Constitutional Council that had a hand in the appointments of Supreme Court judges, the Chief Justice, Court of Appeal judges, Attorney General, Auditor General, Inspector General of Police, the Secretary General of Parliament and others. In commissions too–Election Commission, Public Service Commissions, Judicial Service Commission and Finance Commission the Constitutional Council had to make recommendations for his [President’s] approval. So there was a balancing of authority and the President could not make appointments independently. But if you take the 18th Amendment, and go through the 17th Amendment that states, the President shall appoint ‘subject to approval of the Constitutional Council’ it would be found that those conditional words have been removed. And now the Attorney General and the IGP are directly appointed by the President. In the appointment of Supreme Court and Appeal Court judges he has to get the approval of the Parliamentary Council, a useless body which can only say whether it agrees or not. But the final say rests with him [the President]. That is the end of the matter. So he removed all these safeguards and brought about a situation when he took oaths on the then Chief Justice Asoka de Silva’s ruling which I say is wrong. So the 18th Amendment was made to nobody’s benefit other than of President Rajapaksa, so that he will remain in power. That is why the country is in this state today. But, everything looks good for President Rajapaksa.
Q : Why have you brought this issue up now?
I don’t know why the people did not protest. I have closely studied the Constitution. So I was reading the 18th Amendment since the day it was introduced. Then I found that the President had made a mistake. And I think the correct time has come to point it out. I did not do this for personal benefit.
Q : Do you want to contest the Presidential Election?
I have no intention of contesting any election. I want this 18th Amendment to be rectified because it has led to widespread abuse of power.
Q : How does the 1978 Constitution interpret this situation?
This presidential system of government was introduced by J. R. Jayewardene in 1978. He was elected in July 1977 and within three months of election he brought an amendment to the 1972 Constitution on October 20, 1977. There, he said he was deemed to be the elected President of Sri Lanka. The Executive Presidency was introduced by this amendment. But when he created the Executive Presidency he followed the American and French models to some extent with some limitations.
Article 26 (1) of the Amendment to the 1972 Constitution says that the President of the Republic shall be elected by the people and shall hold post for a term not exceeding six years from that day and that no person shall hold the position of President for more than two consecutive terms. But for some reason when J. R. Jayewardene introduced the 1978 Constitution he made this prohibition stronger. In the 1978 Constitution he altered this to say: ‘No person who has been twice elected by the people to the office of President shall be qualified thereafter to be elected [again] to such office by the people.’ He removed the words ‘two consecutive terms’ which the Russian President Vladimir Putin used to get back the presidency.
Q : According to the Constitution when and where does the disqualification begin?
The person becomes disqualified the moment he is elected for the second time. So Mr. Jayawardene put a very stringent and strong disqualification which comes immediately upon election.
Q : Why do you think President Jayewardene introduced such a strong condition against a third term for a President?
He must have had good reasons to do that. He would have known that the Executive Presidency is a very powerful position and that Presidents would try to continue in power. So he prevented any person coming in for a third term–including himself. So the disqualification arises immediately upon election. This is probably to prevent a person going halfway and putting in another person –as it happened in Russia–and get elected again. So President J. R. Jayewardene who would have realised he had created a draconian institution, included this condition to avoid any kind of manoeuvring
Q : Would you say that President Rajapaksa’s legal advisors did not know this when introducing the 18th Amendment?
Whoever advised President Rajapaksa when introducing the 18th Amendment did not go through this subject carefully enough. He thought only about the two terms and not beyond that. He made a mistake. So what they did in the 18th Amendment was to say ‘by the repeal of paragraph 2 of article 31’. What they did not realise was that by the time President Rajapaksa introduced the 18th Amendment he had already become disqualified by the operation of the law.
Q : Who can reap the benefit of the 18th Amendment and get elected for the third term?
This would help another person who had been twice elected to office. But that will come in 10 or 12 years’ time. I don’t think it will help anybody. With regard to the past disqualification they have not done anything to remove that. Some wording could have been included but without doing that they just repealed the old law. Consequently, the disqualification remains.
Q : On what interpretation of the law do you say this?
Section 6 of the Interpretation Ordinance is clear on this. “A repeal does not affect anything that has been [construed] as a right, liability or anything that has been suffered under an earlier law”. For example a man commits an offence such as rape and he is sent to jail and Parliament repeals that section of the law that deals with the offence and enacts a new article. That does not mean that the person sent to jail for rape can come out even though that penal section has been removed and because he had already suffered that penalty. In any event, in a Constitution, there can’t be retrospective law because the Constitution is the supreme law of the land. So although Parliament can make retrospective laws, there is no enabling provision for the Parliament to amend the Constitution retrospectively. So President Rajapaksa has had a disqualification imposed by the supreme law of the land so that can’t be taken away later on. That has become part and parcel of this system. Now he is disqualified from being elected.
Q : What consequences could the President suffer due to this disqualification to contest for a third term?
There are so many consequences. One is that he cannot make use of a third amendment to the Constitution and have a premature election after four years. This is what J. R. Jayewardene did. Presidential term was six years and J. R. Jayewardene amended the Constitution in 1982 by the Third Amendment after four years in power, I can call for a fresh mandate. Now that is to ‘time election’. The President thereby got the power to time the election. So Mr. Jayewardene brought in his amendment because at that time of 1982 Mrs. Bandaranaike was deprived of her civic rights so there was no strong opponent. So he quickly amended the Constitution and got this four year term. Others also had been using this four-year term. President Kumaratunga did it and President Rajapaksa did that. They get a huge advantage of timing the election. Anytime after four years and they can manipulate and they had been successful so far. That is why all these Presidents can’t be defeated when they are in office.
A important thing that our people must do is that they must prevent the use of excessive power whereby politicians can time elections and manipulate election results.
By timing elections the people of this country have been deprived of their democratic rights .
Q : According to the 18th Amendment the President appoints the Attorney General and Supreme Court judges and the Elections Commissioner. Do you think that your arguments against the President’s right to contest for a third term will be entertained?
That is why I am personally going to the Supreme Court to tell the Court it is not a creature of President Rajapaksa. That is my first submission. The Supreme Court of Sri Lanka was set up in 1802. It has a history of 212 years so it is an independent institution. We have to tell the judges you forget who appointed you. Now I said President Chandrika Kumaratunga’s terms ended. She appointed me. After she appointed me, I become independent. We have to tell the judges please cut yourself off from the shackles of President Rajapaksa. If you give a ruling in that perspective, President Rajapaksa is out. 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.