By Elmore Perera –
“Government to seek Direction on 18A from Supreme Court”; Under the above caption a local newspaper of 05.11.2013 reported that “the Government is to seek an interpretation on the 18th Amendment to the Constitution from the Supreme Court regarding the time period during which a Presidential election could be held during the second term of office of the incumbent. The Government is to seek a direction from the Supreme Court purportedly due to the fact that the 18th Amendment to the Constitution which removed the two term bar of a President, does not contain clauses which state the period during which a Presidential election could be called for during the second term in office”.
It was further reported that “Prior to the passing of the 18th Amendment to the Constitution, the incumbent President could call for a Presidential election for the second term after concluding four years in office. However, the 18th Amendment does not specify the time period after which an election could be called for”.
There can be no doubt that “the Government” that is to seek an interpretation is none other than President Mahinda Rajapaksa who is himself a Senior Attorney-at-Law.
When confronted on 11th March 2008 with the explicit provision in Article 41C(1) as it then was, that “No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article (which included the Chief Justice, the President of the Court of Appeal and Judges of the Supreme Court and the Court of Appeal) unless such appointment has been approved by the Council”, the President nonchalantly stated that he had obtained legal advice on that matter and continued to violate that Constitutional provision until it was revoked in September 2010 by the 18th Amendment.
However, the fact is that paragraph (3A)(a)(i) of Article 31 of the Constitution has been amended in September 2010 by the 18th Amendment to read as follows:
“Notwithstanding anything to the contrary in the preceding 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 this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected”.
President Rajapaksa has already been advised by the Supreme Court that his second term is deemed to have commenced only at the time he took his oaths in November 2010. Presumably dissatisfied with the obvious interpretation of Article 31(3A)(a)(i) that must have been tendered to him by the author of the 18th Amendment Prof. G.L. Peiris and/or his Senior Legal Advisor, former Chief Justice Asoka Silva, he is probably seeking an interpretation that is more acceptable to him, from his former Senior Legal Advisor to the Cabinet and present Chief Justice Mohan Peiris.
Is history about to repeat itself?
*Elmore Perera – Founder CIMOGG & Past President Organisation of Professional Associations for and on behalf of Citizen’s Movement for Good Governance (CIMOGG). The Citizen’s Movement for Good Governance, founded in 2002, endeavours to relentlessly pursue the goal of restoring good governance and the rule of law in Sri Lanka.