By V. Thirunavukkarasu –

Vallipuram Thirunavukkarasu

There was much speculation in the recent past as to the prospective candidate to be fielded by the Joint Opposition (JO)/SLPP. In that scenario, former Defence Secretary, Gotabaya Rajapaksa was identified as the likely candidate, and he demonstrated his readiness to come forward, as he was also urged recently by the Anunayake, Ven. Wenduruwe Upali Thero. Apparently, the Buddhist hierarchy has been in agreement, and Gotabaya Rajapaksa forged ahead to stabilize his position, initially via the “Viyathmaga” presentation at Hotel Shangri-La. Subsequently, he went public with the pronouncement that Economic Empowerment was his vision, even to move toward a political solution to outstanding problems. So , it was becoming apparent that Gotabaya would most probably be the candidate of the JO/SLPP, notwithstanding former US Ambassador Atul Keshap’s revelation made to former President Mahinda Rajapaksa when he met with the latter to bid farewell, that Gotabaya Rajapaksa wouldn’t be the likely contender.

Against this background Sri Lanka Podujana Peramuna (SLPP) Chairperson and former Minister, Prof. G.L. Peiris suddenly pulled a rabbit out of his bag to make out that former President Mahinda Rajapaksa could run for the next Presidential election under the recent 19th amendment (19A) to the Constitution; that is to say, that 19A is not retrospective but prospective. ….. In this scenario, a former Chief Justice, Sarath N. Silva stepped in to reinfofce this position. He says: “There is validity in the argument that 19A does not disqualify persons who have contested the Presidential elections twice before from contesting. The earlier 18A removed the disqualification on those who have served 2 times .” Then he goes on: “In order to provide for a Presidential term of 5 years instead of 6 years, they introduced a new provision in 19A. That is for the term of the President through a newly introduced article. Thus, the restriction remained non-existent for previous incumbents since 19A is prospective. It will only apply to the incumbent President and those thereafter, It is easy to repeal a provision but difficult to introduce a new section”.

Sarath N. Silva’s argument is that 19A will only apply to the present incumbent and thereafter, since 19A is prospective, is apparently based on the amendment to article 31 by the insertion of a para which reads as follows: “No person who has been twice elected to the office of President by the people shall be qualified thereafter to be elected to such office by the people”

Well, the context in which the amendment has been made necessarily implies that that it applies to the previous incumbents as well as it, mutatis mutandis, undoubtedly means that of 18A has automatically ceased to be in force does remain in force.

It is pertinent in this connection to pinpoint the inconsistencies in opinions hitherto expressed by Sarath N. Silva. For instance, in 2004 when the Tsunami devastated Sri Lanka as well, relief donations poured in from various foreign sources in particular. It is common knowledge that during that period , President Chandrika Bandaranaike Kumratunga was out of the island, and the then Prime Minister, Mahinda Rajapaksa, had reportedly siphoned a rather sizeable chunk of such relief funds to what came to be projected as the “Helping Hambantota Fund”. Then, even though it was reversed following CBK’s intervention, Mahinda’s image was impaired in the public eye. When this matter came up in the Supreme Court, it coincided with Mahinda Rajapaksa’s bid to contest the Presidential election. Sarath N. Silva then came up with his judgement absolving Mr. Rajapaksa. Nevertheless, after some time elapsed, he publicly repented his judgement. So, it was akin to closing the stable door after the stallion had bolted. That was the quality of justice that he then dispensed.

Let me touch on just one more instance. In connection with the case filed well over 10 years ago in the Supreme Court with the backing of the then JVP strongman, Wimal Weerawansa, for the demerger of the Eastern Province from the temporarily merged North – East under the Provincial Council system, subject to a referendum to be held in the East in 3 months’ time, but it was not held for 18 long years, the presiding Chief Justice Sarath N. Silva straightaway gave the order to demerge, disregarding the provision for a referendum in the 1987 Indo-Sri Lanka Accord entered into between Rajiv Gandhi and JR Jayewardene, as well as the intrinsically fundamental consideration that it was a bi-lateral political agreement between 2 countries.

And, interestingly, Sarath N Silva reportedly made a speech sometime later at a public meeting (held in Kantale, if I remember right) stating that he delivered that judgement because, in his view, the East is aligned more to the South.

Where then goes the maxim that justice should not only be done but must seen to be done?

*V. Thirunavukkarasu – Former Member, Colombo Municipal Council.