By Elmore Perera –
Under the above caption, ‘Ceylon Today’ of 16.11.2013 reported that “The Government’s plan to hold a Presidential Election in 2014 has run into a storm of a constitutional crisis as there is no provision in the 18th Amendment to the Constitution that allows an incumbent President to contest a Presidential Election before the end of his current presidential term”.
When contacted by Ceylon Today, former Chief Justice Sarath N. Silva is reported to have, inter alia, said:
“the 18th Amendment does not specifically mention about holding a presidential election after four years were completed in a second term”.
“according to the 1978 Constitution, the President can hold an election after four years of his first tenure,”
“the 18th Amendment does not state the President can contest for the third time before completing his second term,”
“one might argue that if the President can contest for the Presidency after four years of his second tenure, it has to be the same with the third tenure too”,
“However, if the Constitution has not specifically stated that, the law does not accept it”, and
“the government appears to be stuck there, but they can go to the Supreme Court and seek an interpretation.”
However, the stark reality is that paragraph (3A)(a)(i) of Article 31of 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, who is himself a Senior Attorney-at-Law, 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. The plain and unambiguous meaning of Article 31 of the Constitution as amended by the 18th Amendment is that, the President may hold a Presidential Election at anytime after completing four years of his second term in November 2014 and before he completes his second term in November 2016, and the same will apply to his third tenure too.”
This is the only valid interpretation of Article 31(3A)(a)(i) that could have been tendered to him by the author of the 18th Amendment Prof G.L.Pieris and/or his Senior Legal Advisor, former Chief Justice Asoka Silva. Presumably dissatisfied with this interpretation, the President apparently is, probably on the basis of the aforementioned opinion of his one time mentor and ally former Chief Justice Sarath N. Silva, seeking a more favourable interpretation from his former Senior Legal Advisor to the Cabinet and present Chief Justice Mohan Pieris.
Clear signs of total depravity? – Oh tempora, Oh mores!
*Elmore Perera, Attorney-at-Law -Founder CIMOGG, Past President Organisation of Professional Associations