hile the verbal battles for the political war of Uva rage on with many analysts predicting it would be a forerunner to a Presidential Election early next year, much attention is now focused on a bigger issue – whether President Mahinda Rajapaksa is qualified or disqualified from contesting for a third term in the all-powerful Executive Presidency.
The former Chief Justice and Constitutional expert Sarath N. Silva in an interview published in the Daily Mirror yesterday insisted that President Rajapaksa was disqualified or had no right to contest for a third term. The former CJ who gave a bombshell ruling regarding former President Chandrika Bandaranaike Kumaratunga’s term of office and virtually forced her to quit in 2005 has now put President Rajapaksa into a similar crisis.
Mr. Silva, widely recognised as one of our top Constitutional experts, though his eight-year term as Chief Justice was plagued by controversies, pointed out that President Rajapaksa was elected by the people for a second term on January 27, 2010. Therefore, the former CJ said, the much criticised 18th Amendment approved by Parliament in September 2010 did not apply to President Rajapaksa but only to future presidents. Mr. Silva said the Constitution, being the supreme law of the country, had no retrospective effect and therefore did not give President Rajapaksa the right to contest for a third term.
Mr. Silva told the Daily Mirror that when the Commissioner of Elections called for nominations for the next Presidential Elections, he would personally file a petition in the Supreme Court, insisting that President Rajapaksa had no right to contest. Mr. Silva said the Supreme Court, established 212 years ago, was historically regarded as one of the four pillars of democracy – the others being the executive, the legislature and the free media. All were equal to provide vital checks and balances for a vibrant democracy where there was accountability and transparency. The sovereign people’s executive power is exercised by the Executive President and the people’s legislative power is exercised by Parliament, provincial and other local councils. The role of the free media is to be the instrument through which the sovereign people exercised their fundamental rights to the freedom of expression and information. The media are also morally called upon to be the voice of the voiceless people, like the millions of farmer families who are now crying out even for a little drinking water.
The former CJ said he hoped that the Supreme Court, though the Chief Justice and most of the judges were appointed by President Rajapaksa, would rise beyond any notion that it was created by the President and act on the noble vision that it was the main institution through which the sovereign people exercise their judicial power.
The roots of the latest Constitutional conflict, which could change the history and the destiny of Sri Lanka, go back to 1977 when the United National Party (UNP) came to power in July that year with an unprecedented five-sixths majority in Parliament.The second amendment to the 1972 Republican Constitution was passed on October 4, 1977 to establish an executive presidency, with J. R. Jayewardene (the then Prime Minister) becoming the first Executive President on February 4, 1978. Before the 1977 general election the UNP had sought a mandate from the people to adopt a new constitution. Accordingly a select committee was appointed to consider the revision of the 1972 Constitution. The new Constitution, promulgated on September7, 1978, provided for a unicameral parliament and an Executive President. As of September 2010 the constitution has been formally amended 18 times.
For months or years, the main opposition parties, including the UNP, the JVP and Sarath Fonseka’s Democratic Party have been holding talks to find a common candidate for the next Presidential Election. In a dramatic and mysterious way, the focus has now shifted and the main question might be as to who would be the candidate of the ruling alliance.