By Elmore Perera –
“A clear contradiction in terms”, as any sane person would say.
Since 1978 the Constitution which is the Supreme Law of Sri Lanka stipulated in Article 31(2) that:
“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.”
In December 1999, H.E. Chandrika Bandaranaike Kumaratunga (CBK) was elected to the office of President for the second time and by operation of Law, she incurred the penalty of becoming disqualified thereafter (for life) to be elected to such office.
In January 2010, H.E. Mahinda Rajapaksa (MR) was elected to the office of President for the second time and by operation of law he incurred the penalty of becoming disqualified thereafter (for life) to be elected to such office.
On 9th September 2010, Article 31(2) was repealed by the 18th Amendment. The result was that no person who is thereafter twice elected to the office of President, would be disqualified thereafter to be elected to such office by the People.
Clause 6(3)(b) of the Interpretation Ordinance No. 21 of 1901 as amended, stipulates that:
“Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected any offence committed, any right, liberty or penalty acquired or incurred under the repealed written law”.
Clause 114, illustration (d) of the Evidence Ordinance stipulates that “The Court may presume that judicial and official acts have been regularly performed”.
In this context ‘regularly performed’ necessarily implies that such act is in conformity with the then existing laws.
The author of the 18th Amendment was no less than the world renowned Constitutional expert, Prof. G.L. Peiris. His draft was scrutinised for legality/conformity with the Constitution, by the Legal Draughtsman, the Attorney General, the Supreme Court and by all the lawyers who appeared before the Supreme Court in favour of or in opposition to, the 18th Amendment. It was thereafter passed by Parliament by 2/3rd majority and certified by the Speaker on 9th September 2010.
Except for, perhaps, some of the Members of Parliament who voted for or against the Bill, all the others viz. Prof. G.L. Peiris, the Legal Draughtsman, the Attorney General, the Supreme Court and the lawyers concerned were all very well aware of the fact that, presumably intentionally, there was no need to affect the penalty incurred under the repealed Article 31(2), by H.E. Chandrika Bandaranaike Kumaratunga and/or H.E. Mahinda Rajapaksa.
There is no ambiguity whatsoever in the interpretation of Section 2 of the 18th Amendment and the intention of the legislature that passed it by the requisite majority, is none other than what is clearly specified therein. It is not what they now may say that they intended at that time.
Any amendment to this Article can only be done by Parliament with the required 2/3rd majority. The Supreme Court is not empowered to do so by re-interpreting it in any other way.
It is a matter of concern that patently subjective opinions are expressed re this matter without specific reference to the explicit and relevant legal provisions. This could only pave the way for the Supreme Court to feel encouraged to make a politically acceptable decision, disregarding the explicit legal provisions relating to this matter. Such an act will only legitimise anarchy.
*Elmore Perera, Attorney-at-Law – Founder, Citizen’s Movement for Good Governance, Past President, Organisation of Professional Associations