24 August, 2019

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That Third Term

By Reeza Hameed

President Rajapaksa’s eligibility to seek a third term as President has become a contentious issue ever since former Chief Justice Sarath Silva declared several weeks ago that President Rajapaksa is legally barred from contesting a third time. Some commentators have challenged Sarath Silva’s views and Chinthaka Mendis was one of them (see Chinthaka Mendis, ‘Why Sarath Silva is wrong’, September 14, 2014, The Island). In my view, Sarath Silva is right in his assertion that President Rajapaksa is disqualified from bidding for a third term and that the Eighteenth Amendment did not remove the disqualification to which he became subject no sooner he was elected for a second term.

22TH-OPEDMAHINDA_ Photo N Ram

*Picture courtesy N Ram

The view that President Rajapaksa is disqualified to contest a third term follows from a reading of the Constitution as amended by the Eighteenth Amendment, read together with the Interpretation Ordinance. A correct interpretation of the Constitution would lead one to the conclusion that the Eighteenth Amendment was only prospective in its operation and despite that amendment President Rajapakse’s disqualification continues.

The Eighteenth Amendment and its effect

President Rajapaksa’s disqualification stems from Article 31(2) as it stood before its repeal by the Eighteenth Amendment. Article 31(2) disqualified a person who had served two presidential terms from seeking office for a further term. Article 31(2) provided 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”.

This disqualification was reinforced by Article 92(c) of the Constitution according to which a person is disqualified for election as President “if he has been twice elected to the office of the President by the People”.

The Eighteenth Amendment to the Constitution was certified on 9 September 2010 and came into force from that day. The incumbent President was subject to the disqualification prescribed in both these articles at the time the Eighteenth Amendment was enacted. It is a disqualification to which President Rajapaksa and everyone else knew that a person elected twice to the office of President would have been subject. It applied to President Rajapakse because he has been twice elected as President.

The conclusion that the Eighteenth Amendment did not remove the disqualification from which President Rajapakse suffered is one that inevitably follows from the application of section 6(3)(a) of the Interpretation Ordinance, which is reproduced here:

“Section 6(3): 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-

(a)  The past operation of or anything duly done or suffered under the repealed written law;” (emphasis added).

(b)  …

(c)   …

When section 2 of the Eighteenth Amendment and section 6 (3) (a) of the Interpretation Ordinance are read together, it should follow that the repeal of Article 31 (2) does not affect anything ‘suffered’ under the repealed law.

President Rajapaksa suffered a disqualification by virtue of the repealed Article 31(2) of the Constitution; and its repeal by the Eighteenth Amendment did not, in the absence of any express provision to that effect, remove his disqualification.

Interpretation Ordinance and interpreting the Constitution

Chinthaka Mendis has argued that the Constitution cannot be interpreted by recourse to the Interpretation Ordinance, and suggested that it would be artificial to rely on a piece of legislation enacted in 1901 to interpret the Constitution. Nevertheless, successive legislatures have adopted this Ordinance and kept it under review by making numerous amendments to it and, over the years, Courts have relied on it to interpret laws on whose meaning they have been required to pronounce.

It is also a fact that the Supreme Court has interpreted the Constitution by recourse to the Interpretation Ordinance. For instance, in Visuvalingam v Liyanage, better known as the Judges Case, in which I appeared as junior counsel to the late S. Nadesan QC, a full bench of the Supreme Court presided over by Neville Samarakoon CJ construed the meaning of the word ‘month’ in Article 157A (7), which was introduced by the Sixth Amendment to the Constitution, to mean a ‘calendar month’ by reference to the definition given to that term in the Interpretation Ordinance.

The Court in that case heard detailed argument on the principles that it should follow when interpreting the Constitution and the Court held that the principles of interpretation that govern ordinary law are equally applicable to the provisions of the Constitution.

Text book authorities on interpretation such as ‘Craies on Statute Law’ and ‘Bindra on Interpretation of Statutes’ are frequently cited to Court by parties in support of principles of interpretation advanced by them even in cases involving the Constitution. The Interpretation Ordinance is Parliament’s own manual for interpreting legislation. The Interpretation Ordinance calls it an ordinance ‘for defining the meaning of certain terms and for shortening the language used in enactments and other written laws and for other purposes’.

It is, indeed, an odd suggestion to make that Parliament’s own guide to the interpretation of legislation shall have no bearing when interpreting the Constitution. The Ordinance obviates the need to define certain terms or to re-state certain principles every time a law is enacted. Parliament should be deemed to have enacted the Eighteenth Amendment with the Ordinance in mind. Therefore, it is legitimate and proper to interpret the Eighteenth Amendment by referring to the Ordinance.

The approach of the Constitution on the effect of past operation of laws is discernible from the Constitution itself. Thus, Article 168 (5) ensured that the past operation of any law in force prior to the commencement of the Constitution or anything duly done or suffered shall not in any manner be affected by the Constitution coming into force, unless the Constitution provided otherwise. A fortiori, even an amendment to the Constitution must have the same effect in respect of anything duly done or suffered by the past operation of any law or Constitution in the absence of an express provision to the contrary.

Where it was intended that a constitutional amendment shall have retrospective effect, it was expressly provided for in the amendment itself, as was done in the case of the Second Amendment by section 3 of that Amendment.

In reality, the function of drafting legislation is undertaken by qualified legal draftsmen who are familiar with the provisions of the Ordinance and the principles of interpretation and whose advice as well as that of the Attorney General would have been sought when drafting the Amendment. It is futile to pretend that the ordinary principles of interpretation do not apply to the Eighteenth Amendment and, accordingly, it is only prospective in its operation.

Enactment and written law

Chinthaka Mendis has argued further that the principle enshrined in section 6(3) of the Interpretation Ordinance is limited in its application to ‘written laws’ but has no application to the Constitution. His argument is based on the fact that the Ordinance used the terms ‘enactment’ and ‘written law’ and has given them different definitions. To address this point it is necessary to reproduce here the two definitions.

“Section 2(f): ‘enactment’ shall mean any Ordinance, Law or Act enacted by the Legislature of Ceylon or Sri Lanka, as the case may be, and shall include-

(i)            The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978;

(ii)          Any enactment having force or law in Sri Lanka and promulgated in the form of a proclamation or regulation prior to the 1st day of January, 1834;

(iii)        The Tesawalamai or the laws and customs of the Malabars or Jaffna promulgated by the Dutch Government of Ceylon in the year seventeen hundred and seven, and referred to in the Tesawalamai Regulation; and

(iv)          The Ceylon (Parliamentary Elections) Order in Council 1946.”

“Section 2 (kk) ‘written law’ shall mean and include all Ordinances, Laws and Acts of the Legislature of Ceylon or Sri Lanka and all orders, proclamations, rules, bylaws, regulations, warrants and process of every kind made or issued by anybody or person having authority under any statutory or other enactment to make or issue the same in and for Ceylon or Sri Lanka or any part thereof, the Minutes on Pensions, and the Ceylon (Parliamentary Elections) Order-in-Council 1946.”

It is apparent that the term ‘written law’ is defined to embrace a wider category of laws than ‘enactment’ and it included an Act of the Legislature of Sri Lanka. In a separate definition, the term ‘Act’ is defined in the Ordinance to include ‘an enactment of the Legislature of Ceylon or Sri Lanka, as the case may be, enacted on or after the 14th day of October 1947, other than a Law enacted by the National State Assembly’ (emphasis added). As a Law enacted by the National State Assembly has been excluded, then an Act could only mean a law enacted by the Parliament of Sri Lanka. Furthermore, both ‘enactment’ and ‘written law’ have been defined to include the Ceylon (Parliamentary Elections) Order-in-Council.

It follows, therefore, that the two definitions are not meant to be mutually exclusive. The definition of a ‘written law’ is wider than an ‘enactment’ and it does not follow that the inclusion of the Constitution in the latter definition should mean that it has been excluded from the former. The phrase ‘written law’ is defined in the Constitution itself to mean any ‘law’, which in turn is defined to include an Act of Parliament.

The Eighteenth Amendment is legislation that emanated from Parliament and is clearly an Act of the Parliament of Sri Lanka and falls within the definition of a ‘written law’. It might have amended the Constitution but it remains as an Act of Parliament.

Even a cursory glance of the Ordinance would make it apparent that the Constitution has not been excluded from its reach. Take for instance section 22 of the Ordinance, which dictates how a court shall interpret a clause in any enactment ousting the jurisdiction of a court to determine the validity or legality of a decision made under that enactment. That section has a bearing on the powers of the Court of Appeal when its jurisdiction is invoked under Article 140 of the Constitution.

Interpretation Ordinance was revised

It is significant that the Interpretation Ordinance was last amended by Law No 29 of 1974 by the National State Assembly. Thus, the question arises as to how the words referring to the Constitution of the Democratic Republic of Sri Lanka 1978 came to be introduced in the Interpretation Ordinance, in the definition of ‘enactment’.

The Interpretation Ordinance as it appeared in the 1956 edition of the Legislative Enactments defined the word ‘enactment’ to include ‘and ordinance as well as an act of Ceylon’. An ‘act’ was defined to include ‘an Act of the Parliament of Ceylon’ as it then was and an ‘ordinance’ too was defined to include an Act of Parliament. Thus, a reader who wished to understand the meaning of an ‘enactment’ was referred back to the definition of an ‘act’. There was no reference to Constitution in the body of the definition of ‘enactment’.

The editors of the Unofficial Revised Edition of the Legislative Enactments 1981 made several revisions to make the Ordinance to make it accord with the intervening changes resulting from two constitutions that followed the 1946 Constitution. In his Preface to the Revised Edition former Justice Deheragoda who headed the team of editors stated that a number of changes were made to the Interpretation Ordinance and that ‘these changes were effected under powers which were to be conferred on the Commissioner revising the Legislative Enactments by the proposed Revision of the Legislative Enactments Bill, which, owing to certain legal and technical difficulties, was never placed before Parliament. These changes therefore, although necessary, remain “unauthorized”…’

However, despite his doubts about the lack of legislative authority, such authority could be found in the 1978 Constitution itself. In this connection it might be relevant to mention Art 168(1) of the Constitution, the effect of which provision is to give continuity, mutatis mutandis, to all laws, written laws and unwritten laws in force immediately before the commencement of the Constitution. In the Judges Case referred to herein the Court had to consider the meaning of the phrase mutatis mutandis as it appeared in Art 157A (7) of the Constitution, and held that phrase to mean ‘with necessary alterations in point of detail’.

For example, the Interpretation (Amendment) Act No 18 of 1972 amended the Interpretation Ordinance by the addition of section 22 which affected the power of courts to pronounce on the validity or legality of certain orders protected by an ouster clause, that is a clause with expressions such as ‘shall not be called in question in any court’. However, the Provisos to that section made the ouster clause inapplicable to the Supreme Court in the exercise of its jurisdiction under the Courts Ordinance in respect of certain matters, a jurisdiction which is now vested in the Court of Appeal in terms of Articles 140 and 141 of the Constitution, and the reference to the Courts Ordinance will have to be read as a reference to the Constitution 1978. Therefore, the editors have made changes to this section to reflect this change. In any event, section 22 will have to be read in this way even if the editors did not make these changes because of the application of the mutatis mutandis rule.

Similarly, the definitions given to the words ‘enactment’ and ‘Act’ will have to be read with modifications, if necessary. However, what the editors did was to insert into the body of the definition of ‘enactment’ the words referring to the 1978 Constitution. Apart from the fact that this insertion was unnecessary, arguably it was not justified by the mutatis mutandis rule because it amounted to more than an alteration in detail, especially where previously in that definition no express reference was made to any law.

Hence, the definition of the term ‘enactment’ in its present form does not lend a proper and justifiable basis for the argument that the Ordinance does not apply to the interpretation of the Constitution.

In any event, in the writer’s view, it is clear that the reference to the Constitution of 1978 in the definition of ‘enactment’ is mere surplusage and cannot displace the compelling arguments for including the Constitution in the wider term ‘written law’.

Conclusion

The conclusion is inescapable that President Rajapaksa is disqualified from seeking office for a third term and he cannot avail himself of the provisions of the Eighteenth Amendment as its effect does not pre-date the Eighteenth Amendment to the Constitution.

*Dr Reeza Hameed is an Attorney-at-Law

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  • 7
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    Dear Reeza Hameed –

    “President Rajapaksa’s eligibility to seek a third term as President has become a contentious issue ever since former Chief Justice Sarath Silva declared several weeks ago that President Rajapaksa is legally barred from contesting a third time. Some commentators have challenged Sarath Silva’s views and Chinthaka Mendis was one of them (see Chinthaka Mendis, ‘Why Sarath Silva is wrong’, September 14, 2014, The Island). In my view, Sarath Silva is right in his assertion that President Rajapaksa is disqualified from bidding for a third term and that the Eighteenth Amendment did not remove the disqualification to which he became subject no sooner he was elected for a second term.”

    Mr. Rajapaksa wants a Third Term to continue the Family Dynasty by hijacking SLFP so that, he can have Basil Rajapaksa as a Prime Minister, and the next Term Basil Contests as a Presidential Candidate with son Namal Rajapaksa as Prime Minister. So, when Basil becomes old, son Namal will be contesting as President, while Mahiinda Rajapaksa will be in “Apaya”, Hell, burning in fire, along with Mara.

    Read Below

    JVP explains why masses should fear Mahinda
    THURSDAY, 16 OCTOBER 2014 11:40

    http://www.lankatruth.com/home/index.php?option=com_content&view=article&id=7686:jvp-explains-why-masses-should-fear-mahinda-&catid=42:smartphones&Itemid=74

    JVP is carrying out a campaign stating that Mr. Mahinda Rajapaksa cannot contest the forthcoming presidential election and if he contests the presidential election would be illegal. The JVP campaign is to build an opposition to the move and is creating a point of view that Mahinda Rajapaksa cannot contest for a third term. Meanwhile, Mahinda Rajapaksa supporters come out with various arguments.

    The JVP has released a media announcement explaining why ‘Mahinda cannot contest a third time’. The media announcement states:

    “Mahinda cannot a third time – No illegal presidential elections!”

    News have been published that incumbent president Mr. Mahinda Rajapaksa, before his second term concludes and immediately after he completes four years of his term, is preparing to go for a presidential election. It is evident that this presidential election is against the constitution which is the fundamental law in our country and violates its clauses. As such, we believe all people in this country should know the important facts regarding for what purpose is the sudden presidential election is to be held, could it be held legally, what would be the outcome of an illegal presidential election and how could it be avoided.

    For whom is the sudden presidential election?

    As President Mahinda Rajapaksa was elected for a second term at the presidential election held in January, 2010 and was sworn in November 2010 he could be in power for 6 years; that is until November, 2016. Why is the sudden presidential election called if he has time till 2016? It is to get power for 6 more years before the people’s opposition that is developing daily against him and his government aggravates further. As such, this sudden presidential election is not in the interest of the country or the people but is held for the greediness for power of one individual and is held due to panic that his power would be lost. The move spending billions of public money and ignoring opposition of certain quarters of the UPFA is to further establish the despotic family rule. It would undoubtedly be a massive future hazard for the country as well as for its people.

    Is ‘18’ ethical?

    The incumbent president is preparing to hold a sudden presidential election for his third term according to the 18th amendment adopted in September, 2010. However, this amendment to the constitution is not ethical. Despite the President asking for a 2/3rd majority for the UPFA at the general election held in March, 2010 – after the presidential election held on January, 2010, people did not give him a 2/3rd majority. As such, the UPFA government does not have a 2/3rd majority given by a people’s mandate. However, the 2/3rd majority was manipulated by getting, through bribes and presenting other privileges, MPs elected with votes against the government. As it is not a 2/3rd representing the standpoint of the people the 18th amendment is unethical.

    Why Mahinda cannot contest for a third term?

    Despite President Mahinda Rajapaksa is preparing to hold a sudden presidential election under the 18th amendment adopted unethically, he cannot go for a third term according to the present constitution even under the 18th amendment and also he cannot call for a presidential election without completing 6 years of his second term.

    Legal experts in Sri Lanka have quoted two strong legal arguments regarding this. They are:

    01. Clause 31 (2) of the constitution Mr. JR Jayewardene got adopted in 1978 states ‘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 people.’

    Also 92 (c) of the Constitution states that a person ‘twice elected to the office of President’ is not qualified to be elected to the office of President.

    As such, Mr. Mahinda Rajapaksa was disqualified to contest a presidential election as soon as he was elected as President at the presidential election held on 26th January, 2010. Despite the two clauses were removed in an amendment after two months on 9th September, 2010, Mr. Mahinda Rajapaks had already got himself disqualified to contest a third time. According to interpretation ordinance act in Sri Lanka the removal of a law could be implemented to the present or the future but not to the past. Hence, Mr. Mahinda Rajapaksa is not qualified to contest the presidential election or get elected to the office of President from January that year despite the 18th amendment was adopted. As such, he cannot constitutionally contest the presidential election.

    02. The other reason is Mr. Mahinda Rajapaksa cannot call for a presidential election until his second term of 6 years is completed.

    The third amendment brought in by Mr. JR Jayawardene to the constitution amended the 31st clause. It states a person elected for the second term should “hold office for a term of six years commencing on such date in the year in which that election is held.”

    Amendment states ‘the President may, at any time after the expiration of four years from the commencement of his first 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.’ According to this the President can call for a presidential election after 4 years only during his 1st term.

    In the 18th amendment brought in 2010 the words ‘first term’ was removed and was replaced by ‘current term’.

    However, according to article ‘D’ of this amendment the President in office should hold office for a term of six years commencing on such date in the year in which that election is held before he calls for a presidential election.

    This clause has not been amended by the 18th amendment. As such, Mr. Mahinda Rajapaksa cannot call for a presidential election after four years of his second term. He can call a presidential election only after six years. Mr. Rajapaska was sworn in for his second term in November, 2010 and he would have to call a presidential election after November, 2016. He has no constitutional right to call a presidential election before that.

    Illegality of the sudden presidential election:

    It is evident that Mr. Mahinda Rajapaksa has no legal provision to hold the post of President or call for a presidential election even through the 18th amendment that was adopted in a hurry for petty intentions and hunger for power. If a presidential election is held before the second term of Mr. Rajapaksa is concluded such a presidential election would be illegal and as Mr. Mahinda Rajapaksa cannot contest a presidential election hereafter and as he is disqualified to do so, his coming forward for such an election too is illegal.

    Why is the Constitution violated?

    In such an environment if the incumbent President, without considering the Constitution, calls for a sudden presidential election to get elected again would be very harmful. If this becomes a precedent it would be dangerous. The President is getting prepared not to solve the issues of the people or the country but to risk the people and the country to extend his power. Such a power would definitely be anti-democratic. It would be a despotic family rule. It would definitely be harmful for the future and it should be defeated.

    The President, instead of facing this legal argument is getting his henchmen to ask ‘Why are you so afraid of Mahinda? If the ruler of the country is violating the Constitution to extend his power people who cherish democracy should fear him. People should fear when they see creation of dictators who do not care for the Constitution and laws of the country. They should not be silent but come forward to defeat this danger.

    Our responsibility:

    If Mr. Mahinda Rajapaksa, arbitrarily, without considering the objections from several parties of the UPFA, ignoring the question by the Secretary General of the SLFP for the need for a sudden presidential election, casting aside legal arguments of legal experts but on behalf of his hunger and greediness for power declares a sudden presidential election, it should be defeated. It need not be allowed.

    The attempt of the President, blatantly violating the Constitution, the fundamental law of the country to go on a dictatorial path should be defeated. As such, what should be done is not to silently accept the unconstitutional and illegal attempt of the President and contribute to it but to vehemently oppose it and defeat it. It should be challenged and defeated.

    For this the people should be made aware and a public opinion against it should be created. While creating a public opinion and a people’s power the vile act should be legally challenged in courts.

    If the President is unconcerned and acts according to his agenda masses should be rallied to defeat him.

    The task of the JVP at the moment is to rally the people against this illegal act. Hence, we call upon all masses to come forward to defeat the attempt to hold an illegal sudden presidential election.

    Political Bureau,

    Janatha Vimukthi Peramuna

    15.10.2014

    • 10
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      Ranil Wickramasinghe the all time LOSER and UNP dictator is the scum of the earth.

      He has not protested and NOT challenged the legality of Rajapaksa running for another election, and has put himself forward as all time losing candidate once again! JVP is far more ethical and put the prior question of Jarapassa holding an ILLEGAL election forward and is carrying out a great campaign to educate the Sinhala Modayas. Ranil has failed as leader of the opposition to educate the people and challenge Jarapassa on all the corruption because he Ranil is bought by Rajapaksa and too busy fighting with his party members. Ranil is a total disgrace and deserves to be stripped on citizenship of Sri Lanka.

      And Sobith thero seems to be dithering and the joint opposition in total disarray and Jarapassa gets set for another illegal election… What a mess this miracle of Modays is!

      Channdrika Bandaranaiyake Kumaratunge is the only hope to get rid of the corrupt and criminal family of Mahinda Jarapassa and hope she will come forward soon.

      • 7
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        This is very unfair towards RW.
        There are hundreds of maraurders today in politics – they are just all kind of abusers. But give us any stories where RW has abused the nation ?
        I respect him that much as last to remain to save this nation. He is educated. Western world and america respect him consider him as a leader. Locals are being cheated by MR regime making RW WHAT HE IS NOT.
        pEOPLE should get this finally… RW is the most uncorrupted politician – senior man in lanken politics. He would never abuse the nation and tax payers funds for his fatting pockets.

        • 3
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          Mr S.P., you seem to be a wise man. Can you say something about RW-VP pact?

          • 4
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            Janz

            “Mr S.P., you seem to be a wise man. Can you say something about RW-VP pact?”

            It was VP’s death warrant. VP voluntarily signed his own death warrant with a bit of persuasion from the peace facilitators Norway. He never trusted his own people nevertheless he falsely believed in Norway hoping Norway would recognise his Eelam, not knowing Norway came into the scene to finish off LTTE as a credible fighting force.

            So much for the leadership abilities of a psychopath.

            • 2
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              Absolutely – a most accurate observation.

          • 1
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            QUESTIONS ARE BEING ANSWERED BY QUESTIONS.

            can you please enlighten us about the secret links of MR and KP ?

            Kschenuka Seneviratne the most brutal IBOLA infected to lanken External Affairs and her pvt contacts with LTTe activists in Switzerland ?

          • 1
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            Whatever the RW-VP past was, it certainly was not corruption. On the other hand, the Rajapaksa regime is brimming with corruption but they are much too clever to leave any evidence and able to control probable witnesses. There is no earthly reason why for instance Mervyn Silva has not been sacked for his atrocious behaviours whilst many have been ostracised for less. Has he a hold on MaRa?

        • 1
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          Sven Perera.I would say that Ranil is better of the lot. But he is no saint.Remember Gonawela Sunil? Remember what happened at the tyre Corporation? Was it one of his thugs who was killed when they attempted to attack Kelaniya University students?Remember Batalanda? Remember the Wijedasa liyanarachchi case and finally, If he was clean how come Daya Gamage whpo robbed 650 million from the govt sugar factory become the party’s benefactor over night. They are all the same.

        • 1
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          sven

          “But give us any stories where RW has abused the nation ?”

          Doesn’t this become the biggest abuse of all?To allow a president to contest for a third term when he is forbidden by the constitution.Not only that,he puts himself forward as a losing candidate,allowing mahinda to rule till 2020.

          Also after the ceasefire agreement in 2002 VP went on a killing spree but what did ranil do about it?Even all our intelligence operatives were killed in the heart of colombo when he was the PM.

          • 2
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            Shankar, I will give you one. When the bill was brought to change the constitution in 2000 by CBK, RW sabotaged it. His people burnt it in the parliament.Ravi Karunanayake was inside the chamber, instigating people outside to riot.If RW was honourable, then the present problem would not have arisen.In that attempt RW was with MR

        • 2
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          Sevn Perera,
          Do you know the meaning of the term MORAL CORRUPTION AND MORAL TURPITUDE?
          Ranil Wickramasinghe suffers from MORAL CORRUPTION and TURPITUDE. He has accepted Mahinda Rajapaksa’s bribes – to beautify his office among others. He TACITLY supports MR by not challenging the CORRUPTION of the Rajapaksa regime, in order to remain DICTATOR of the UNP and is thus destroying the party and the country because he is not doing the job of opposition leader. Ranil FINDAMENTALLY lacks the legitimacy to challenge Mahinda and Gota’s emerging military dictatorship in Sri Lanka since he (RANIL) is Dictator in the UNP after losing 26 elections.
          Ranil is too busy fighting with his own party to be able to focus on being the Leader of the opposition and challenge the corruption in the regime STRATEGICALLY. There is NO STRATEGIC THINKING in the UNP just ad hoc interventions…
          Today it is the JVP and TNA which are the opposition in parliament.
          No one in the world has lost 26 elections and then wants to be Presidential candidate!!! Sorry to say Ranil Wickramasinghe STINKS TO high heaven! This is MORAL TURPITUDE.

      • 0
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        All what JVP saying is it is a”sudden election” and “disqualification”. The disqualification here is not by committing crime against the peoples that is criminal in nature or did not have an education or experience or trait to be an EP. The one who drafted the constitution did not envisage the people would want a desirable person to continue on the seat, without Limit. JR might have thought that everyone endeavor to become an EP could be as dangerous as himself. But the reality cannot be standardized like that. So, the 18th is fixing that shortfall. This is not a sudden election; JVP was in that, all these time. It was asking to put Anura Kumara as the common candidate. It did not work. So now it is twisting the talk. That is not new, that how all the Sinhala politicians do. Anura cannot be an angel. The early elections are and amendment. So JVP has to accept it. CBK lost one year in her term, because JVP terrorist Silva said the early elections is authorized, so she can there 6 years after the election. If the early election was wrong, Silva, the terrorist should have allowed CBK to complete both 6 year terms, that is 12 years. Sinhala lawyers and judges always make law work for them. King needs not to heed to this JVP’s false argument.

        18th amendment is properly done. Ranil will not oppose that. King need not get 2/3 majority in the election itself to amend the constitution. Anybody can vote for that, including the opposition. So opposition crossing is a cow dung talk by JVP, in this context. If King has manipulated to make the opposition to cross, first Ranil who manipulated to get Mangala has to let him go back to SLFP. This is not a matter for court MPs crossing parties. All those who accepted bribe and gave bribe has to go prison, including Mangala. This sound strange, if Mangala gives bribe on behalf of King to defeat Pirabharan it is ok, if that is not allowing Anura to win then, it has to meet at the court? That is real joke man. Is this another Sinhala Buddhist law?

  • 1
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    A very detailed, clear presentation of the existing legal situation.

    Now, who is going to bell the cat?

    We have a moronic legislature subservient to the whims of the Rajapakses.
    We have a compromised judiciary.
    We have an impotent opposition, bar the shouting and posters!
    We have an apathetic and selfish electorate

    If an illegal Presidential Election is called, who does one go to, for redress? The UN ? The Commonwealth?

    Is it illegal if MR does not contest?

    According to the JVP it is. This article does not address the issue of early elections not being allowed in the second term, although it is allowed after four years, in the first term.(According to the JVP)

  • 0
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    THe time has come of civil disobedience campaign against the Mahinda Jarapass’s military dictatorship. CBK with Sobith Thero or Karu should be the logical joint opposition candidate to lead the CIVIL DISOBEDIENCE and PROTEST campaign against Jarapassa’s third Presidential bid, because Ranil Wickramasinghe the UNP dictators is corrupt and useless.

    It is URGENT that the joint opposition led by Karu Jayasuriya and Anura Kumara of the JVP and the TNA must unite:

    1. to have MASS PROTESTS on the streets against Mahinda Rajapaksa running illegally for a third Presidential elections and EDUCATE SINHALA MODAYAS about the true state of governance in the Miracle of Corruption.

    2. to prevent Mahinda Jarapassa presenting the illegal budget which is an insult to the people of Sri Lanka in the Parliament PREMATURELY.

    This must be done by MASS PROTESTS and CIVIL DISOBEDIENCE inside and outside the parliament.
    The people must be EDUCATED about the CORRUPTION. In India the BJP stalled the parliament for 6 months with protests and the people understood how corrupt the Congress regime was. Now BJP is in power. The joint opposition should follow the Modi Strategy to educate people through stalling passage of Bills in Parliament and virtually shutting it down..

    • 1
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      Perhaps, CBK silence will be connected to the threats being exercised on her these days. This Rajapakshe aggressions are beyond all moral and ethical levels.

  • 0
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    Mr/Ms Kalupahana… are you going to show up? Or is it someone else’s job?

  • 2
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    Despite what the author has said, supposing President Mahinda contests for the third time and wins, what then? Can the legal eagles provide an answer?. If he is wins then wouldn’t any executive orders he makes become unlawful, and anyone carrying such orders would be guilty of carrying out an illegal order and hence punishable.
    Former Chief Justice and the author are of the opinion that the current President is ineligible to contest a third time, shouldn’t
    they provide an answers to the questions stated above.
    What is baffling is that none of the parties, except the JVP, has raised the question of his eligibility. Surely there are legal luminaries in all the parties, then why the deafening silence? Does silence mean that these parties concurr that the President is eligible to contest a third time. These are matters where the people of SL need clear answers, however hypothetical they may be.
    It is also important to realize, that either way a precedent will be set and we need answers.

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    JVP piece reproduced by Mr Amarasiri here is more important than the Legal Opinion.

    It must be the great majority of the inhabitant population who should pick the Leader.

    JVP who once claimed to represent the great majority of the poor rural population and take them to Cuba , and ended up destroying the lives of over 100,000 innocent youth in two instalments are now totally aligned with the UNP.

    Do they believe that the party of the Elite, Anglicans, and the Vellalas who now have even sticthed up a deal with the LTTE diaspora , following the EU lifting the Ban, can look after the Dalits better than Rajapaksa?..

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      K.A Sumanasekera

      “ended up destroying the lives of over 100,000 innocent youth in two instalments are now totally aligned with the UNP.”

      Come on you are being too kind to both parties to the conflict.

      An estimate suggests an 18,000 youth were slaughtered by the armed forces in 1971 and another 130,000 were killed between 1987 and 1990 mostly innocent youth by the armed forces and their militia.

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      “JVP who once claimed to represent the great majority of the poor rural population and take them to Cuba , and ended up destroying the lives of over 100,000 innocent youth in two instalments are now totally aligned with the UNP. ” That is not JVP. It is SLFP and UNP. In other words, it is Queen Sirima and Vellala Premadasa.

      Ranil is suing Sulumina for 500,000 millions. If Sulumina does not have the money K.A.Sumanasekara may volunteer to pay for this Dalit?

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      Hey Sumanasekaram, do you copy and paste the following words in all your comments?
      •Vellala
      •Anglican
      •Tamil
      •LTTE
      •Diaspora

      I wonder what machine you came out of when you were born?

      Sad sack of potatoes man. Go and get a life.

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    Legality or illegality of Mahinda Rajapakse for the third term is not the question. The question is who will dare to give a verdict against to Mahinda Rajapakse. The attorney at law and chief justice and other judges are under the control of President Rajapakse and his brother Gotapaya. We have seen how justice system functioned in the case of former chief justice and former military commander.

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      You are very right Ajith. Its only the masses can do it with their vote and the day will come, some day soon.

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    The intention of the legislators are important than the wording. All the legislators voted for 18th were willfully thinking that they were re-seating the King to EP post again. Nobody will be contest that intention of the legislators at the court. The current opinion of Hakeem, Athuralyie are all after the fact. Their count is not reversing the 2/3 majority obtained at that time, even if that Parliament sitting is reconstituted now. Legislators was brought to give a chance to the incumbent to continue his good achievement that is wiping out the LTTE. That can not be denied in the court. If the court want a affirmation of that, there is not problem, Hakeem and Ahuraliye will vote for that too. When Bloomberg was the Major, the city council wanted the incumbent to have one more term to continue his good works. They passed a by-law. So Mayor Bloomberg served three terms. It should be remembered he accepted the term limit of the City when he took oath for his second term.

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    We congratulate Malala Yousafzai, the last Prophet, for winning the Nobel Peace Prize.

    SL too needs her.

    SL government should invite her before the election.

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    The word “disqualification” is an artificial word here. If the constitutions has clearly said the EP will be a criminal after he has completed his two terms then the word “disqualification” is acceptable. The Constitutions assumes, the excessive terms of an EP can suppress others democratic rights. That is why it is simply baring a third term. If that hurdle is removed, he can serve for the next term. That is what the 18th is exactly doing. It is not attempting a miracle by turning a qualified person or a one leg person into a normal person. As King has the acceptance of majorities, having met the majorities wishes, the general use of disqualification will not apply to King.

    Prof. Lasiri has said that all constitutions should have windows to accepts the people will. So, a challenge that amount to deny the peoples will and the wish will not not be accepted by the court.

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    The judiciary is stacked with MR apologists. They will ensure all legal arguments against a third term are nullified. At the end of the day with the utterly ineffective RW holding the only credible opposition seat for dear life, MR seems to be the only candidate for the job despite his fraud and corruption bridled administration.

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    Riza, do you think that the Court of Mohan Peiris will deliver justice to Sarath Silva who did not deliver justice and allowed the cross over from the UNP?

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    Time for Sri lankan Umbrella Revolution ( Like Hong kong). Idoubt it very much as most in SL don’t have a back bone…

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    So far only the JVP and sajit have said that a mass agitation is needed to stop the president from contesting a third term.

    Thank you, Ranil,CBK,Fonseka,sobitha,karu for your deafening silence.

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    Its not the matter who is gonna be next EP or whther MR is eligible for 3rd or not? finaly its the peoples verdict. Who ever come to power -(MR/ RW /CBK/JHU/ SOBITHA/ SN SILVA/JVP/ or any common candidate) must not allow for another PRABAKARAN to be born by hook or cook. If not next day that ruler will have to go home naked. let see who is going to be next president and how he is going to face thhis challenge?…

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    “must not allow for another PRABAKARAN to be born”

    sam,what you are meaning is any future leader will have to see that there will be no more riots against the tamils.That is how prabaharan became what he was.As a child he kept hearing about the atrocities done to tamils and asked why they are not hitting back. After becoming a teenager also he listened to the stories about july 83 riots and how his own aunt came back to jaffna from colombo with a burnt face and narrated to him her ordeal where she had jumped over the parapet wall and escaped.So the only way not to have another prabha is to have rulers who do not allow unruly mobs to go on the rampage in future against innocent people.The sinhalese created prabhaharan,not tamils.

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      Yes.. Shankar, you are right past is past, the future leaders have to continue the peace and unity between all ethincs and relegions. if not many more lifes will burn. That is the challenge going to be, and not the question about how many terms, as long as peoples choice is that.

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    The absolute power conferred by the 18th amendment has corrupted the presidency, absolutely.
    Further, MR will lose the personal immunity conferred by the Executive Presidency if he loses the presidency by ballot, or by constitutional provisions as explained.
    This will enable perusal of unexplainable personal wealth and he may go the way of Jayalaitha of tamil nadu.
    This is the terrifying spectre confronting him, his family and sycophants who too possess unaccountable wealth.

    Every effort will be made to hold a presidential election, and, win it
    by unfair unlawful means.
    This is the spectre confronting the nation.

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    Dear Mr.RH, your article “That Third Term” is well written in simple English for every one who is not Legally Educated to understand where Mahinda Stand on his greediness to grab power to sell the country to Chinese contesting a Third Term to be the President of our poor nation.
    Anyone reading your article gets a clear idea why Mahinda is NOT eligible to contest the Third Term. Sarath N Silva former Chief Justice who was bias in few Judgement, clearly stated that Mahinda ‘s disqualification, not as a Attorney but as a Judge who compare the evidence before giving a decision.
    Article 31(2) has already given the final decision to Mahinda that he is NOT eligible to contest the Third Term. It is an after thought for him to get the 18th Amendment enacted, This 18th Amendment was, in my mine may have formulated by a novice legal person who is not well conversant with the understanding of the Rule of Law. May be this man may be now a Supreme Court Judge for the favor he did for Mahinda Rajapaksa. But unfortunately his little knowledge about the rule of law did a massive mistake in drafting the 18th Amendment.
    When anyone read the 18th Amendment the mistakes he has created is clearly visible. He Repealed the Chapter VII, Article 31(2) but missed the most important requirement under the Interpretation Ordinance of 1901,to rectify the mistake he was doing by just repealing the Article 31(2), to make it possible for the incumbent President who was disqualified by the Article 31(2)on the day he contested for the Second Term, to allow him the legal basis to contest the Th rid Term.
    If this 18th Amendment was enacted by qualified Legal Draftsmen and had the AG check on this Amendment this mistake should have corrected.

    But for the good of the Sri lankan people this man knowingly or unknowingly created a very serious mistake which cannot be corrected NOW. It is like a Batsmen was given out by the Umpire and later the rules were changed to allow the batsman to continue to play and score runs. If Cricket cannot change the rules then the Sri lankan Constitution is not able to change the rules NOW for Mahinda Rajapaksa to be the President for the Third time.

    He MAY contest with the help of the SC and try to prove to the Sri lankan voters that he is eligible to contest, but what will be the INTERNATIONAL reaction, and where ever Mahinda goes he will be treated a a Illegitimate President and may be treated as a Cheat. What about his Chairmanship at the Commonwealth Society?

    President Rajapaksa don’t try to be a FOOL and contest the THIRD TERM and become a JOKER, because your greediness is overflowing more than the Diyawanna Oys. .

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