By Elmore Perera –
Under the above caption the ‘Sunday Leader’ of 17.11.2013 reports that the CJ says “most Lawyers above 70 years old are not up to date with the current laws and regulations” and “lose cases making an unfavourable impact on their clients”.
Still laughing, I telephoned my friend Stanley Jayasinghe to give him the good news that he will not, in future be required to distrust me. He had never been able to come to terms with my advise to him (when I was about 70 years of age) that “Even I should not be trusted when I am in my black coat.”
Within 24 hours I became aware of the fact that the ‘Ceylon Today’ of 16.11.2013 had carried an article under the caption “Presidential Poll plan runs into a Storm”. It was reported therein that former CJ Sarath N. Silva (who is well nigh 70 years of age) when contacted had, inter alia, said that :
(i) the 18th Amendment does not specifically mention about holding a Presidential Election after 4 years were completed in a second term,
(ii) the 18th Amendment does not state the President can contest for the third time before completing his second term,
(iii) one might argue that if the President can contest for the presidency after four years of his second tenure, it has to be the same with the third tenure too,
(iv) however, if the Constitution has not specifically stated that, the law does not accept it, and
(v) the government appears to be stuck there, but they can go to the Supreme Court and seek an interpretation.
The fact of the matter is that in September 2010, the 18th Amendment amended para (3A)(a)(i) of Article 31 of the 1978 Constitution to read as follows:
“Notwithstanding anything to the contrary in the proceeding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his current term of office, by proclamation declare his intention of appealing to the people for a mandate to hold office, by election, for a further term: provided that where the President is elected in terms of this Article for a further term of office, the provisions of its Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected”.
Sarath N. Silva has obviously not been “up to date” with this significant change in the Supreme Law effected within 16 months of his relinquishing the position of Chief Justice. This seems to justify the view expressed in the Bar Association that the termination should be at the age of 65.
Having stated categorically what in his view the Constitution does not state, Sarath N. Silva goes on to say that in such circumstances the law does not accept it and opines that the government can go to the Supreme Court and seek an interpretation.
There is not a shade of doubt that if the government acts on this seriously erroneous advice and seeks an opinion of the Supreme Court, the present CJ will meekly oblige by furnishing the interpretation sought by the government?
Ironically, in this instance, acting on this patently faulty advice will have a most favourable impact on this client. This will not be the first time that, purportedly acting on advice tendered by “Legal Luminaries”, this government has circumvented unambiguous constitutional provisions.
*Elmore Perera, Attorney-at-Law – Founder CIMOGG, Past President OPA