By Nagananda Kodituwakku –

Nagananda Kodituwakku

Both the Executive President Mr Mahinda Rajapaksa and Mr Mohan Pieris appointed to the office of the Chief Justice have taken oath as required by article 32 and 107 and Fourth Schedule of the Constitution, to perform the duties and discharge the functions of their respective Offices and to uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka to the best of their ability.

The whole nation is fully aware that Mr Mohan Pieris was appointed to the Office of the Chief Justice by the President Rajapaksa, when there was no vacancy existed in the office and by forcibly denying the incumbent Chief Justice, Dr Shirani Bandaranayake of her right to perform the duties of office of the Chief Justice. In short Mr Mohan Pieris should have been fully aware that accepting the office of the Chief Justice when there was no vacancy was clearly a violation of the law and in the given circumstances any oath or affirmation taken to uphold the office of the Chief Justice would become void from the beginning and thereby any decision made by him or by any bench appointed by him would have no legal effect at all. They are bound to be declared invalid once the Rule of Law is restored in this country and hence the billions of taxpayer’s money spent on the Supreme Court during his period would go waste.

Contesting for 2^nd term of the Executive President

The People of this country are fully aware that President Rajapaksa did utter no word during his election campaign for a second term, seeking a mandate from the people to amend the Constitution, enabling him to contest for a third term. Therefore enacting an amendment to the Constitution (for a third term), which only provides for two terms in office under the previous law was not only unlawful and but morally a wrongful act on the part of the President and amounts to violation of the oath taken in terms of the 4^th Schedule of the Constitution.

Declaration for Presidential Election well before the end of term in office with intent to contest for a 3^rd time

The shelf life of the office of the President is still two more years from completion but the President calls for an election with a great craving for reelection. And there are many arguments against this move on the basis that President cannot contest for a third term as he has been elected under the previous law which permits only two terms with no expressed provision in the amendment, accommodating the one in office also to become eligible.  This argument is simple and straightforward and there is no ambiguity at all about the retrospective effect of the 18th amendment in the absence of expressed provision in the amended law providing otherwise. And on the other hand there is no question of law arisen, which is of such public importance to obtain the opinion of the Supreme Court, whereas the issue raised is purely concerning the interests of an individual.

Insulting the intelligence of the people

Yet, having doubts about his eligibility, President Rajapaksa has resorted to abuse the provisions of Section 129 of the Constitution that is meant to be used in matters concerning national importance and not on any particular individual. Relying on this provision of law the President has sought the opinion of the Supreme Court on 05^th Nov 2014 and already the President himself and several of Cabinet Ministers have expressed their confidence in ‘the would be ruling’ and challenged those who oppose the move of the President to go before the Supreme Court.

The Registrar of the Court has now notified the Bar Association about the President’s reference and called for only written submissions, if any, on the matter before 07^th Nov 2014, which would be decided by the Court in private.

One can clearly argue that this act by the Supreme Court clearly amounts to be a betrayal of the people’s judicial power as the Judiciary of this country exercises people’s judicial power on trust and not the judicial power of the executive president in office.

This hasty decision making, denying a fair opportunity to the people, becomes more serious as there is no urgency whatsoever and not even a date for such an election has been declared yet by the government. The President of the Bar Association, Mr Upul Jayasuriya says that the ‘hearing’ on the matter has been concluded in a double quick time on the Presidents reference.

In this background the only hope for the people is that a future government would take corrective measures to restore the rule of law and good governance in this country and would take measures to deal appropriately with those who continue to abuse the Executive, Legislature or Judiciary Offices for improper considerations.

It is prudent to every Statesman to learn from the history. For instance, Adolf Hitler reestablished the pride of Germany as a nation after the World War I. And if he had ended his political career or died before 1939, (before the World War II), he would have been admired and respected as one of the greatest Statesmen in the German history, but endless craving for power brought him down from a national hero to zero. The living example is Burkina Faso where the Executive President had tried for a third term and finally had to flee the country to save his life.

What the President of Sri Lanka should contemplate is that he should leave all the good things he did for the country since his election to the Office to go into the history intact. Endless craving for power only brings disaster for individuals as well as for their respective countries.

How can one forget the fate of our friendly nation Libya, purely because of the dismal failure on the part of Colonel Muammer Gadaffi to step down in the right time as a national hero!