By Elmore Perera –
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On 9th September 2010, Article 31(2) was repealed by the 18th Amendment.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or be deemed to have affected any offence committed, any right, liberty or penalty acquired or incurred under the repealed written law”.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
Thiru / October 15, 2014
What the majority of people want is what they are getting! No point in complaining about it.
If they ever wanted genuine democracy they would have nurtured it after Britain gave it on a platter in the hands of the Sinhalese majority leaders.
What a mess the leaders since independence have made it to be – a dysfunctional anarchic state with a mass murdering crazy lot as the leaders.
No wonder they say: What you want is what you get. You got it – now relish it.
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Amarasiri / October 17, 2014
Elmore Perera –
RE:Legitimised Anarchy?
“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.”
Legitimised Anarchy? or “Legalized” Family Dynasty.
People need to rise up against this anarchy? Need action, What actions?
The problem is with the Opposition. They need to get their act together and clean up this Mara Dynasty that is destroying Buddhism.
Elmo, Can you be the Author of Common sense, 2014 for Lanka, to free Lanka of Mara.
Whoever opposition candidate comes forward, there need to be exposure of MaRa corruption and nepotism. There is a dire need for a Common Sense Pamphlet, like what Thomas Paine did in 1776 for the American revolution, exposing King George III.
What can writers and other do? Expose.. Expose and Expose the Mara regime. What can the writers do? Expose. What can the people do? Vote against MaRa and the criminal gang.
Can you be the Anonymous Author and Produce a Sri Lankan version of Common Sense in Sinhala, Tamil and English? You will do as much service to Lanka, the Land of Native Veddah Aethho, just like Thomas Paine did for America and France.You can expand this write up, and get there.
Say, Because I have Common Sense, I will not vote for Mr. Rajapaksa and their criminal cronies for a continuation of a Family Dynasty, and say that Sri Lanka is a Republic.
Rajapaksa had the opportunity. The power corrupted them. The People are sick of them. They even used Buddhism towards their ends. Even Sinhala Buddhists are fed up them, and they are showing their true colors.
An Anonymous Author like Thomas Paine is needed with a Common Sense Pamphlet to expose the King, King George, the Rajapaksa Clan. Read, the Common Sense Pamphlet , by Thomas Paine, that inspired the American Revolution along with the other events. Common Sense (pamphlet)
http://en.wikipedia.org/wiki/Common_Sense_(pamphlet)
Produce a Commons sense Pamphlet for Sri Lanka and say why it is in the best interest of the people of Sri Lanka to remove the King, aka Rajapaksa Dynasty from power and let the Republic be a Republic and Not a dynasty. This Pamphlet, in Sinhala, Tamil and English, need to be sent to each and every Sri Lankan Citizen, just like Thomas Paine’s Common Sense pamphlet.
Mara. MaRa Devils need to be confronted.
See How the KOBANE BLOODY BATLLE-Kurdish KIDS vs. ISIS Devil Terrorists.
https://www.youtube.com/watch?v=afa3L8X-cjw
Published on Oct 4, 2014
Iraq war – Kurds – ISIS – Kobane battle – Kobani – female soldier – Arin Mirkan – Zozan Cudi – Syria war – Female soldiers IDF – Yezidis – iraq Christians – Iraq’s Christians – Peshmerga – Kurdos – IDF – Kurds female fighters – Gaza – YPJ – Kurdish YPG – Ukraine war – James Foley – ISIL – killing ISIS – PKK – IS – Ayn Al-Arab
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Ram / October 15, 2014
” 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. “
Did she NOT put herself forward as the so-called common candidate ? That must mean that the old Constitutional limitation has been legitimately superseded.
Bolivia’s Evo Morales has been elected for a THIRD term just two days ago. Putin was ELECTED back into power for a third term after serving a period as the Prime Minister and is undoubtedly more popular now than he was. The Constitution was written and amended as necessary by our elected representatives as provided within the very same constitution. We don’t all have to agree with them. The elections will determine if the President is TRUSTED to be empowered for a third term or NOT. Is the electorate NOT the final arbiter ?
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punchinilame / October 15, 2014
…”Is the electorate NOT the final arbiter ?” – Of course it is as in
any Democracy, but what we have here is a deaf and blind EC, coupled
with a nespotic arm to conduct elections and now refind with a Chinese
Team of Cyber experts to handle the ECs computer set-up.
The track-record of a double-speak President deserves a “Nobel”award!!
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senaka de Z. Sirwardena / October 15, 2014
We have nothing against having a presidential election, even tomorrow, according to the terms of the constitution. According to the constitution it would be either Maithripala Sirisena or Nimal Siripala De Silva are only eligible on SLFP ticket. MR should be shown his own salon door to make his way out.
CBK too could have violated the constitution if she so wished and stayed. She didn’t do that as an respectable and educated person.
People could have given a sympathetic look for a reasonable request for MR if he had asked from the people. But what he did was very ugly midnight business to change everything keeping the entire country on blindfold.
Sri Lankan people will not like things like these.
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gamini / October 15, 2014
Anarchy was legitimised when former CJ Sarath N Silva used his discretion to prevent the Police from probing the Tsunami Scandal without allowing the Rule of Law to apply. This he publicly admitted later, that had he allowed the Rule of Law to apply, MR would be behind bars today. That was the day that Anarchy set in, allowing a thug, a murderer, a cheat, a humbug, a Liar and an Imbecile to become the president of this country.
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janz / October 16, 2014
gamini
This nation should thank the gods that a thug, a murderer, a cheat, a humbug, a Liar and an Imbecile was ruling this country in the year 2009.
There are hateful imbeciles who still believe that being VP around would have been better than Rajapaksha ruling.
It is the gods who made VP to throw away what Ranil offered.
Mr. Gamini, the greatest lesson the Sinhala nation should remember for eternity is even after offering everything possible for at least a temporary peace the Tamils went on for the final prize.
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gamini / October 16, 2014
Janz,
For the gullible like you, MR defeated the LTTE? Whereas MR has had deals with VP to help him become the President. Thereafter once the LTTE buried their weapons and left their stronghold Kilinochchi, VP faction was eliminated retaining the KP faction for further business by this scum bag. So how can you say the LTTE was defeated by MR? This bugger MR is a wheeler dealer, who was used by the Americans, the Indians and others who have a finger up the asses of Sri Lankans of your ilk to believe that MR defeated the LTTE in 2009. KP missed the buss, thanks to the voters of the NPC.
This so called defeated LTTE in 2009 is revived as and when it suits MR for political gain, while KP is silent about his existence. Had MR’s plan worked with KP taking over the North they would have shat in your mouths of buggers like you, as there are Tamils like Telli Rajaratnam, KP who are no different to MR as all are Cheats, Rogues, Murderers, Liars and imbeciles be they Tamils or Sinhalese or even Burgher Buggers as your self.
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Spring Koha / October 15, 2014
Uncle Mohan says:
“No problem. Repeal and re-enact. Everything fixed and ready for MR to resume business as usual”.
ps: Gamini was right; If Sarath Silva had done his duty, the story would be much different today.
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janz / October 16, 2014
Yes S.K., Gamini is right. the story would be much different today if a thug, a murderer, a cheat, a humbug, a Liar and an Imbecile was not in power in the year 2009 and VP is still around. Bad luck?
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Spring Koha / October 16, 2014
janz:
The reward for ridding us of the detested Tiger scum was not meant to be carte blanche to loot and fuck-up the country; encourage drug dealing, bribery and corruption, shackle the forces of justice, law and order, and let loose the rabid shit-stirrers to sow communal disharmony. We were duped by a devious bugger who impressed the common man with his ‘concerns’ for human rights etc and induced the people to vote him into power.
This is NOT the ‘Mahajana Chinthanaya’.
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Janz / October 17, 2014
“The reward for ridding us of the detested Tiger scum was not meant to be carte blanche to..
That is the dilemma
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gamini / October 16, 2014
Janz,
If Karuna Aman, KP and the rest of the LTTE that killed, can be sold to Buggers like you by MR to get them saluted by the shameless Forces, I see no problem why you Buggers can not accept VP, if MR had the brains to sell VP to you Buggers and avoid the sword of the Americans and the Indians hanging over him today? How to? MR should have brains first, instead of his Bluff?
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Janz / October 17, 2014
Gamini
Being a gentleman you are very upset that VP was cheated undiplomatically even before the military push. MR even deceived the International community who rushed to Sri Lanka to save VP in the final days. I am happy that he did that as my children are free today to move around as they please and I cannot understand your desire to see this country drowned in blood.
Naive as I am, I thought it was RW who sold one third to VP.
Gamini you may hate a thief who is ransaking your house, but what if the thief once saved your children from a murderer?
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gamini / October 17, 2014
Janz,
The story that the International Community tried to save VP was mere eyewash. If they wanted to, MR could not have defied them. The truth is they helped MR to eliminate VP, by luring VP out of Kilinochchi anchoring a few boats at sea and once VP and crowd abandoned Kilionochchi and assembled on the beachfront the ships disappeared after the civilians were allowed to cross over to the Forces side. I personally do not believe that the massacre was committed at the behest of Rajapaksas, but the International Community would have given the nod just to have the Rajapaksas under their thumb. I have no qualms killing VP but almost a forty thousand unarmed Tamil men women and children merely because some would have been LTTE members to have been killed in cold blood, who were unarmed and then to boast, is only a psychopath could do.
Your hypothesis of a thief saving my family from a murderer is too far fetched, because MR is the thief and the murderer both.
Your Logic if RW gave one third to VP, why VP did not support RW is something that none of you can explain. Instead all who accused of a pact between RW and VP were otherwise helping MR to have a pact with VP paying VP heavily. Sadly some of those who helped MR to have pacts with VP, have been killed by MR himself staging the murders.
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leelagemalli / October 17, 2014
Gamini@ these blind people are brainwashed to the manner nothing can easily help them recovery.
That is it. Today to experience the disfranchisement of SF says everything. Thi skind of abusive leaders we hav enot had in the country since indepedence.
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Janz / October 18, 2014
“Your Logic if RW gave one third to VP, why VP did not support RW is something that none of you can explain.”
It is very easy to explain.
At the time Tamils, NGOs, Norway, and International community including the RW headed govt believed in the invincibility of LTTE. So TNA headed political Tamils believed it was time to declare Ealam in one go. So in their calculation military engagement was the fastest route and they thought Rajapakha would be an easier adversary for that purpose.
Only a psychologist would be able to explain your preference for that gory past over this corrupt regime.
Out of the two evils to choose from you prefer one and I prefer the other.
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Janz / October 18, 2014
Gamini
I am not going to contest your figure of 40,000 civilians killed but shall be very grateful if you could comment on, when RW was a powerful minister in the UNP govt:
-almost 50,000 youth were mercilessly killed in the 1989 JVP nosuppression (bheeshanaya), most individually caught, tortured, even burned alive including Wijeweera by govt organized vigilantes.
-In 1983 more than 2000 innocent Tamils were mercilessly killed by govt affiliated thugs. 200,000 thousand made to flee.
– in 1982 cultural heart of our Tamil people, the Jafna library burned was burnt down to ashes by govt thugs. This is the most shameful, most uncivilized, barbarian act in our 2500 year history.
Awaiting your comments
Janz
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gamini / October 18, 2014
Janz,
RW under Premadasa was not a powerful Minister in the UNP Govt but he was forced and made use of by Premadasa to cover the sins committed by Premadasa cohorts as Sirisena Cooray et al. Remember Richard De Soyza, RW was made use of to defend the UNP govt. Had he not RW would have been kicked out of the UNP long before Lalith and Gamini.
Yes, granted some youth would have been killed who had nothing to do with the JVP. At the same time many JVP youth acted as innocents in the areas they lived but were ruthless killers elsewhere. The Architects of the crime wave under the UNP were Premadasa, Sirisena Cooray, Gamini Lokuge and crowd and RW had no hand. If RW had such criminal genes in him, he would have got rid of MR by now or RW himself would have been history by now.
For your information Rohana Wijeyweera, Velupillay Prabahkaran and Mahinda Rajapaksa are all Criminal Rogues and you trying to equate RW to them, I will leave it to the readership to assess.
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Janz / October 19, 2014
“Yes, granted some youth would have been killed who had nothing to do with the JVP. At the same time many JVP youth acted as innocents in the areas they lived but were ruthless killers elsewher
When I say 50,000 you say “SOME youth would have been killed.” When they say SOME civilians would have been killed you say
“40,000”
It is more than obvious where your lie and why you hate Rsjapaksha.
Thanks.
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gamini / October 19, 2014
Janz,
when you say 50000 innocent were killed, how do you confirm they were not JVP? According to your Logic, Mr. Attanayake also would have been an innocent by-stander and not Rohana Wijeyweera the megalomaniac.
When I say 40000, that was the number that remained after the 350000 odd civilians were allowed to cross on to the Forces control after much publicizing that they were held as a Human Shield, where MR and Gota first harped on a zero casualty figure, but had to reluctantly admit the numbers when Callum Macre revealed with graphic evidence the number that were massacred in cold blood.
Yes it is more than obvious, as to whose numbers are more plausible whether yours or mine, you being another LIAR, desperately trying to shield your hero, the criminal liar MR, hiding behind the name tag of a Janz, pretending to be a Burgher. What FRAUDS we have to contend with?
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Janz / October 19, 2014
RW under Premadasa was not a powerful Minister in the UNP Govt but he was forced and made use of by Premadasa to cover the sins committed by Premadasa cohorts as Sirisena Cooray et al. Remember Richard De Soyza, RW was made use of to defend the UNP govt. Had he not RW would have been kicked out of the UNP long before Lalith and Gamini.”
Justifying crimes committed by others to save his skin!
What a personality to save this country from Rajapsksha juggernaut.
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gamini / October 19, 2014
Janz,
For your information, strategy does not mean conniving with crime, if one is not party to, but a means to an end, to end crime and corruption. People like you will never understand as you louts can not think beyond your noses.
You will see who RW is very soon.
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Bedrock Barney / October 16, 2014
Yes Elmore but in this country do we accept the whole of the constitution? If we do, then what of the 13 amendment? We regularly debate in public whether we should implement an amendment that is already part of the constitution. So picking parts of the constitution that we like, seems to be the norm. Insisting that we stick to the letter of the law seem so radical that one might be led to believe that Sri Lanka is located somewere in Europe.
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Namal Perera / October 16, 2014
Who would want to stick on to power by force? Some one who has committed crimes against humanity, destroyed or turned a Democratic Country into a corrupt lawless Banana Republic and those who have no where to RUN.
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Prabuddha Rassagala / October 20, 2014
I respectfully disagree with the Senior Professional Elmore, Surveyor cum Lawyer whom I believe held the position of Surveyor General.
Interpretation Ordinance quoted by him refers to offenses committed, liberties, rights and penalties.
In other words if Mr X was possessing a substance which he is not supposed to posses today and action is instituted against him for that and while the action is pending a decision, the law is changed that possessing that substance which Mr X once had is no longer an offense, then the action instituted against Mr X can yet be maintained and if found guilty Mr X can be punished.
If Mr X is already sentenced to a punishment for committing an offense at that time and now decriminalized that does not prevent the execution of that sentence.
This situation can change only if the amendment to the law says that all pending prosecutions and pending executions too are annulled.
My understanding of the Roman Dutch law is that if a branch of a tree juts out into the property of the neighbor, say in Colombo, (Not in Jaffna) then the neighbor has the right of all the benefit of having fruits on the part that is protruding into his property. Now supposing the law is changed today that even in Colombo the fruits, the leaves etc of the branch that juts out into the neighbors property really belongs to the owner of the land where the tree is rooted and that the described owner has the right to enter into the property of the neighbor to collect his belongings then as per the interpretation ordinance quoted still the neighbor continues to enjoy the previous right he enjoyed. It is to the new instances of branches jutting out to neighbor’s lands will the new supposed law will operate unless it specifically provides for all previous instances as well.
The barring of a person to contest an election, having held office for two terms is not a penalty nor an offense committed. It is a determination of a disqualification or a qualification. Now supposing for admission to a college of learning requires three A Level passes, a person having two passes will not be eligible for admission today. But if for the next batch of admissions, the laws are changed so that the requirement is only one pass, then the person who was denied admission in the previous batch cannot be denied admission just because he was disqualified last time and that disqualification still remains.
Therefore in determining the eligibility of candidates, the returning officer of presidential elections on previous occasions was obliged to reject the nomination of any person who held office for more than two terms. But with the 18th amendment the RO is not obliged to count the number of terms of presidency the nominees has held.
The purpose of an amendment to the Constitution giving the right to the sitting President to call for a Presidential election any time after the expiration of four years is to declare his intention of appealing to the People for a mandate to hold office. If as per the Elmore interpretation of the Constitution (combined with the Interpretations Ordinance where he mixes disqualifications with penalties etc) then by the same token this President is debarred from right of calling for a Presidential election after the fourth year of his current term.
Clearly fellows cant have both ways
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