MR can’t seek SC opinion on 3rd term: Ex-CJ

Former Chief Justice Sarath N. Silva PC said yesterday the President could not seek the opinion of the Supreme Court on the constitutionality of seeking a mandate for a third term.

“The President can seek the opinion of the Supreme Court on an issue of public importance, or to obtain an interpretation on the constitution. The latter could only be done during the course of judicial proceedings and not otherwise” he told Daily Mirror.

He said the matter that was raised by him and subsequently by others in the legal fraternity was confined to a personal disqualification of the incumbent President.
“When the Supreme Court’s opinion is sought in a matter of public importance it is in the exercise of its advisory jurisdiction. The clear fact is that this isn’t an issue which falls within that ambit simply because it’s a personal disqualification for the incumbent. The Articles in the constitution are clear on this. If the President so decides he could seek the opinion in his private capacity from private individuals but that’s as far as he can go,” Mr. Silva said.

He said he had accepted an invitation from the Janatha Vimukthi Peramuna (JVP) to come to its platform and educate the public on the constitutional aspects of the issue.

“I have gladly accepted the invitation by the JVP. The JVP offered me a platform to educate the people on this very important matter. I accepted the invitation free of any political affiliations,” Mr. Silva said adding the provisions of the constitution were clear on the matter.

“Section 31 (3A) of the Constitution states that the President can proclaim an election any time after the expiration of four years in office, however, it specifically states that, ‘notwithstanding anything to the contrary in preceding provisions. The succeeding provision 31 (3A) (d) stipulates that that the incumbent has to hold office for the full six years commencing from the date of election. Accordingly the Supreme Court has computed the date of assuming of the second term to be November 19, 2010. The provision is a fait accompli. The President must hold office for the entirety of the six years and cannot call for an early election” he said.

The former Chief Justice said in any event the Interpretation Ordinance was clear on the facts that even the article stipulating disqualification, 31(2) which was repealed by the 18th Amendment, stands firm.

“The President was disqualified from contesting a third term on the date he was elected. There has been a debate about whether the Interpretation Ordinance is applicable when interpreting the Constitution. Judicial precedent is very clear and a nine-judge bench has held both on the validity of S.6 (3) of the ordinance to the constitution and on the repeal of laws. The very day Mahinda took oaths, he was accordingly disqualified from seeking a third term,” Mr. Silva said.(Hafeel Farisz)