By Kumar David –

Prof. Kumar David

Campaign to nominate MR revs up as the Opposition’s options run out: Nihal Jayawickrama comes out to bat for MR

It is difficult to believe that the timing of a piece entitled “Disqualifying Twice Elected Presidents – A Failed Endeavour?” in the Colombo Telegraph of 19 August written by Dr Nihal Jayawickrama, was fortuitous. In the alternative one would be compelled to say that Nihal has miscued. I have known NJ from 30 years from Hong Kong days, respected his integrity and enjoyed his impish humour. So if I were compelled to, I would prefer to allow that he has goofed than made himself a tool of the Rajapaksa bandwagon. But the facts! The Eighteenth Amendment (18A) by which Mahinda Rajapaksa (MR) abolished term limits was greeted with revulsion, it split political parties, evoked mass campaigns and was a factor in his defeat in January 2015. NJ knows this as well as any ardent observer of the political scene. 19A was enacted with the express intention of preventing all presidents past, present and future from exceeding the two-term limit. NJ knows as well or better than any political animal that this was the public demand, what was promised and what every one of us took for granted till that fateful 20 August Monday.

I reiterate that the timing and content of NJ’s intervention conveys the compelling impression that it is part of the campaign, now in full swing, by the Rajapaksa opposition to overturn term restrictions and allow MR to contest the presidency in 2020. I have no evidence to suggest Nihal is colluding with GL and his gang or conniving to benefit GL’s case in the Supreme Court but undoubtedly it is helpful for MR and GL. Is it not said that justice must not only be done, it must also be seen to be done? Likewise, the remit of ones interventions is the remit of what those interventions appear to convey. My reluctant conclusion is that my friend Nihal is a pawn in an obnoxious political game.

The way NJ phrases his intervention not only says explicitly that MR can contest the presidency in 2020, but it also implies that if he wins, and wins again in 2025, only thereafter would he be ineligible, having been twice elected after 19A was enacted! NJ is no fool and he must realise this import of what he is saying. NJ knows that term limits for all presidents was what the people called for when they demanded repeal of 18A; he has by hook or by crook distanced himself from this.

Let us for the space of this paragraph concede that the drafters of 19A goofed – I don’t think so, but grant it for a moment. Then the import of NJ’s intervention reeks of: “Hooray they mucked it up! MR can ride again!” (Mention of the Chandrika option is a red herring pure and simple). If that was not NJ’s intention he would have couched his piece entirely differently. His thrust would have been to protect the intent and purpose of 19A. He would have pleaded that inadequacies in wording, if any, notwithstanding the Court must hold with the sentiments of the people and the intentions of the assembly that enacted 19A. The latter is clear from the Hansard records which I trust will be placed before Court. Thankfully I am no accredited lawyer but not an idiot either; NJ’s legalist sophistry undermines the intent of 19A.

If NJ is right that the drafters of 19A goofed, then lawyers are asses as there is not the slightest ambiguity about what the people wanted. Even worse, human rights lawyers who have spoken up against torture, the white-van culture and authoritarianism, if they switch sides and come out to open the batting for Rajapaksa’s team, need to explain the morality of their switch. The Opposition is opting for the ‘Mahinda as candidate’ tactic as a last resort. The first fling was to try out Gota, the barrage of criticism (“racist-fascist”) and negative evaluation (you can’t win against a 100% Tamil-Muslim block) put that strategy on the back-foot. Then a JO chucker went out pimping for Dinesh. That never took off, nor did the dead-left’s kite flying for Chaamal gain traction. The SLPP Opposition finally fell back on what had always been its trump, Mahinda. There is no gainsaying MR is the JO’s strongest (though still beatable) suit. The danger with this strategy is that if excessive expectation is created but the Supreme Court says “nope”, or if it says “come back if the Elections Commissioner throws you out”, then the psychological setback could be severe. The dice is on the roll.

The question that many ask is “If NJ is playing along with MR, why is he doing it?” After all he is remembered as a critic of white-vans and assassins. I can only speculate till the maestro himself bowls his next over. There are two possible lines of speculation. He is, reasonably, fed up with Yahapalana’s failures and has decided, unreasonably, that reverting to MR is better. A mistake but I know others too who have shifted to reverse gear. This is political. The other is a personal feud due to the grossly unfair treatment meted out to Mrs B and Nihal by the JR government in which Ranil was a Minister who held his opportunist tongue. Ranil has compromised his moral integrity on more than one occasion so in the context of a failing administration perhaps NJ decided to change sides. Frankly this is all speculation, but speculation NJ has brought upon himself by the content and timing of his article.

The law is an ass

The crucial operative section of NJ’s missive, shortened here and there (why are lawyers so verbose, do they get paid by the word like copy editors?) is as follows.

“A new Article was included by the 19th Amendment. That Article 31(2) reads: “No person who has been twice elected to the office of President by the People, shall be qualified thereafter to be elected”. To whom does the disqualification in Article 31(2) apply? On the one hand, it undoubtedly applies to anyone who has been twice elected (after) the 19th Amendment was enacted. On the other hand this is an entirely newprohibition on (others). Immediately prior to the 19th Amendment, the Constitution did not impose such disqualification, therefore, a person who had previously been twice elected by the repealed Article 30 (should) not (be) subject to such a disqualification”.

A further point that NJ makes is that the powers and function of the president, when changes enacted by 19A are taken into cognisance, are different (far less) than they were prior to 19A. Under the much hated JR constitution the Executive Presidency was more powerful and odious than the post-19A. NJ’s point is that when 19A imposed term limits it did so only on this less obnoxious presidency that it created and this does not carry over to the odious pre-19A presidency which was a different animal. This is sophistry; the cry in the country was against the excessive, Bonapartist, near dictatorial powers of the JR crafted presidency and the public outcry was against 18A and abandoning term limits. NJ’s incredible story line amounts to: ‘The presidency is not as obnoxious as it was before 19A, so why not let any sod who has had two goes at the loathsome version have two more goes at the improved version’. Insane!

Jayampathy has refuted NJ in the Observer“Mahinda Ineligible to Contest 2019 Prez Poll” in the Observerof 19 August and I guess lots more chaps in black cloaks will weigh in.

I will not add to this legalistic cacophony because what is crucial is the will of the people and the intentions of the legislature at the time and in the processes of enacting 19A. But I must add that I have been present at forums prior to the enactment of 19A where drafters were pointedly challenged to reassure participants that the disqualification provision was retroactive. We were assured that this had been meticulously attended to.

Let me make just two final points and sign off. Nothing that I have said here should be taken to mean that I advocate a Tom Mix style brashness in respect of the law. Of course one must not highjack the written word in cavalier fashion to suit some convenience of the moment. I foresee the criticism that I advocate denigration of the law as written, but such censure is false. Such a concern cannot arise in this instance as this is the first, and in all likelihood it will be the only time, that this aspect of 19A will be put to the test.

Nor must this discussion be jumbled with concerns much debated in the US where judges are differentiated as traditionalist-conservative or liberal-modernist. The former hold that the constitution is a fixed document to be taken literally and the function of a judge is to ensure its proper usage in each specific instance. These judges promote conservative values and rarely challenge reactionary executives. Liberal justices on the other hand believe that the constitution is dynamic and open to advance and they value judicial progress. Nothing of this philosophical debate is even remotely relevant to this piece.