Controversy has arisen in the political arena regarding the upcoming presidential election. According to the existing law,  a person can hold the office of president twice. But with the 18th Amendment this position was changed. It enables a person to contest for the third time as well.  Some of the legal luminaries are of the view that President Mahinda Rajapaksa can contest for the third time while some say he cannot as this has become an issue in retrospection. The Dailymirror sought views on the issue from some constitutional experts.

Nobody is above the law

V.T. Thamilmaran, Dean- Faculty of Law, University of Colombo

From the beginning many have criticised the executive presidency which was introduced to this country by the 1978 Constitution. Some of the minority parties and legal experts supported the idea of executive presidential system as it will help to resolve outstanding problems that existed in the country.  That’s what they thought because an executive president needs minority votes as well. Therefore bringing a political solution under such a system would be much easier.(54.34)

But on the other hand we opposed.  The view we held was that  we must look at it in a larger perspective. My personal view is that the executive presidency must be abolished from this country.

"The president is the head of state and head of the government,  head of the Cabinet as well as being  the commander  in chief of the armed forces.  He or she can  be a political party leader, too."

Nowhere it is defined what is meant by executive powers. The person who exercises executive powers is called  an executive president. But what is meant by executive powers is the next question.  In 1964 the Indian Supreme Court defined executive powers as follows --  ‘some powers are for the parliament, some powers are for the judiciary and whatever left that is not given to the parliament or the judiciary should be called executive powers’.

But in Sri Lanka what happened was the other way around. All the powers were vested with the parliament and the balance of power were given to the judiciary and the parliament. The executive powers dominate the other two sectors. The way our political system operates, the powers that are vested with the other two institutions are not exercised properly. For instance,  parliament can be dissolved without  the president having to give any reasons.

Once, President J.R Jayawardena said that the executive presidency was for rapid economic development demanded by people and that it would give him sufficient time to implement programmes  without getting into party politics. In today’s context, one might think the same raison d’etre -- for rapid development -- is demanded by the people. And the question number two is programmes which hindered is it possible for us to argue that the executive presidency should continue.

The president is the head of state and head of the government,  head of the Cabinet as well as being  the commander  in chief of the armed forces.  He or she can  be a political party leader, too.

In the West, the president cannot appoint judges to the Supreme Court without the support and guidance of the senate. But in Sri Lanka the president can appoint anyone he wishes to the Supreme Court.

What is the essential feature of rule of law? Nobody is above the law, including the ruler. The major draw back of the 1978 constitution is that the executive president is above the law. It clearly undermines the principle of rule of law. Article 85 of the constitution states that president is above the law as far as his official acts are concerned. This immunity is given to the ruler for official actions. But if this immunity is extended to private actions, what would be the outcome?

President Rajapaksa can contest for the third time

Batty Weerakoon, former Justice and Constitutional Affairs Minister

According to Batty Weerakoon, the president himself has made the amendments which have given him the space to contest for a third time.“I have explicitly said many times that President Mahinda Rajapaksa himself has gone and made necessary amendments to the ongoing Constitution making it possible for him to contest and contest several more times,” he said.

“The amendment he made is such that it does not prevent him from contesting. He is already the president. Through the amendments to JR’s constitution he himself can contest. It is open for him to do so as to make him life-time president. He controls the majority in the Parliament. He can take over people from other parties. I do not wish to comment on what is good or bad to him. I comment on the position of the law,” he said.

Weerakoon said that there is no bar for Rajapaksa to contest for the third time.“President Rajapaksa can contest for the third time as he has removed all the bars which were in the constitution,” he said.

Prolonged Ex. Presidency makes p’ment a rubber stamp

Dr. Jayampathy Wickramaratne, Presidents’ Counsel and former senior Advisor to the Ministry of Constitutional Affairs

Four years have passed after the introduction of the 18th Amendment. Before speaking about the 18th Amendment, it is mandatory to see under what constitutional frame it was brought in.  One needs to examine the  17th Amendment, too.

J.R Jayawardena spoke about the introduction of a system of executive presidency during the 1970s. But not even his own party, the United National Party (UNP),  supported the idea at that time.  But when JR was appointed as  leader of the UNP, he got the opportunity to introduce the executive presidency. Through this, he laid the groundwork to facilitate the proletariat in this country.  Some say that JR was influenced in this regard by British PM Margaret Thatcher  and US President Lincoln. In any case, JR introduced the executive presidency  to this country and paved the legal background for neo liberalism .
An executive president has unlimited powers.  In reality, this power was and is used to lure MPs from the opposition to government ranks. When Chandrika Bandaranaike was in power,  she used her executive powers,  and now Mahinda Rajapaksa is using his executive powers massively. He received a 2/3 majority by abusing these powers. He lured MPs by giving them various positions and  got them to cross over. Many argue that President Rajapaksa has a 2/3 rd majority. But in reality  he does not have that. He  got it forcibly by giving bribes and other abuses of power.

JR introduced the third amendment to the constitution in 1982. According to that, although a president has a tenure of six years, he can dissolve the parliament after four years. This indicates that the president can hold an election under favourable circumstances. All Sri Lankan presidents including JR have used this to secure their power. In our political history, the 17th Amendment introduced in 2001 can be considered as a milestone. This amendment introduced limitations to the executive presidency. A constitutional council was established. Approval of this council was needed with regard to certain appointments such as judges of the Supreme Court and Court of Appeal, Auditor General, Attorney General, IGP, etc. Also, independent commissions were required  to be appointed under the recommendations of this commission.

According to the Constitution, a president can hold the presidency for two terms. There should be limitations to the executive presidency. When one person holds the executive presidency for a very long time, parliament becomes a rubber stamp. Nobody has any respect for the parliament today. Everybody speaks about the presidency.  When there is a limitation to the term of the president, it enables another person to come into power as a successor. Many people who supported the 18th Amendment regret the decision today.

Many opinions are  expressed now on whether President Mahinda Rajapaksa can run for presidency for a third time.  It is an accepted fact that when a law is passed it will be applicable in the future. If that is to be applicable to the past then it must be specifically stated. We  must look at the law.  Some say we need to abolish the executive presidency. It may be in everyone’s interests to structure it in a way  suitable to our political culture.  There is a hierarchical order in the parties. Also there are political families, or dynasties. There are people who argue that if the executive presidency is abolished, it will be a threat to the stability of the country.  I firmly believe that it should be abolished. We need  to bring back the 17th Amendment. As long as  the 18th Amendment is in place,  it is impossible to find answers to existing issues. I personally believe it would be better if a new Constitution is introduced. Sadly,  we do not have that possibility now. We need to have democratic space to make it possible, but that no longer exists. There needs to be a wide consensus among parties regarding this issue.

In politics one should not be petty minded.  Some people are of the view that if there is a rigid rule will be beneficial for them when   they come in to power. This was the exact way in which LTTE leader Prabhakaran’s mind worked. But we know what happened to him.

Sri Lankan needs an Executive Presidency

Gomin Dayasiri, Senior counsel and Constitutional law expert

According to the Article 31(2) of our constitution a person cannot hold power beyond the two terms granted. However this position was revised in 2010. As at present there is no bar with regard to the time period which a person can contest. Therefore that is the prevailing law,” he said.

"According to the Article 31(2) of our constitution a person cannot hold power beyond the two terms granted."

According to 2010 amendment there is no bar as the two-term limit has been eliminated. As Dayasiri points out the issue of retrospective effect does not arise. He said what the real issue is not the number of times the president can contest or the presidency but the fact that there is limited leadership material in the country.

When Daily Mirror inquired whether an executive presidency is needed for a country like Sri Lanka he said that it in fact is necessary. “I think Sri Lanka needs an executive presidency as we have a multi-party system.

These powers helped especially during the war. However the powers of the president must be reduced,” he said.
With regard to the allegation that the president received two thirds majority by force, he said that the president did not. “President Rajapaksa got a thundering majority. My question is who was the Chief Justice who gave the decision for people to cross over? It was this decision which enabled the members of the United National Party to legitimately cross over,”
he said.