By Laksiri Fernando –

Dr. Laksiri Fernando

“The precedent against a third term for any president grew out of the same determination….a third term [is] most dangerous to the people’s liberties.” – Robert Alphonso Taft

The danger of allowing a third term for the incumbent President, Mahinda Rajapaksa, cannot be underestimated. It would be the litmus test whether Sri Lanka completely goes in the authoritarian direction or whether it retains the main thrust of democratic governance. If a third term can be prevented, it sure can, then it would be the resurrection of democracy in Sri Lanka which is at present stifled under a family rule.

It is not my normal habit to say, ‘I said so.’ But this is such an important issue to clarify the different positions expressed in relation to the increasingly controversial third term, some retrospection might be important. In my article titled “President Rajapaksa has no People’s Mandate or Moral Right to Contest Again” (Colombo Telegraph, 21 April 2014) I argued the following in the initial paragraph.

“When President Mahinda Rajapaksa contested for the Presidency in January 2010 for the second time, overwhelming assumption of the people who voted or campaign for him was that it was his last term. That was the constitutional position as well as the tradition of this country, like in many other democratic countries, since 1978 when the presidential system was inaugurated. The two term limitation was ingrained in the Constitution.”

Obviously my argument was primarily ‘moral and political’ one and still remains the same. However, in summarising the arguments at the end, I also said that it should be challenged even legally in courts of law as follows.

“The purpose of this article however is to argue the point as it has done that President Rajapaksa doesn’t have a people’s mandate or a moral right to contest again and his candidacy, potential or otherwise, should be challenged morally, politically and even legally in the courts of law.” (Present emphasis).

Morality undoubtedly is the basis of law or should be the case. In most languages, the etymology of the word Law connects up with the word Just or Jus. In ancient South Asia including Sri Lanka, Dhammathath (moral/natural law) was considered the basis of Yasathath (law of the king).

Former Chief Justice Sarath N. Silva, in my opinion, has come up with a strong legal argument against the third term. Whatever the mistakes on his part in the past, his arguments cannot easily be disregarded in public debate or in law courts.

Constitutional Position

Any careful reading of the Article 31 (2), before the 18^th Amendment, shows that when President Rajapaksa was elected for the second time he became disqualified for a third term or any other term. It explicitly said “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.” The words ‘twice elected’ and ‘thereafter’ are important.

Although that article became abrogated with the 18^th Amendment, his disqualification did not become nullified since law cannot apply in retrospect unless explicitly decreed. This is not only an international principle as Dr Prathibha Mahanamahewa has erroneously stated today (Daily News, 15 October 2014) but a domestic principle ingrained in our legal system. Otherwise the legal system can become easily arbitrary. Supremacy of parliament does not automatically alter this principle. In other words, the amendment of Article 31 (3) did not alter the disqualification placed on the incumbent President. There is opinion expressed that in the absence of such an explicit reference in the Amendment what is relevant is the ‘intention of the Amendment.’ That definitely can be the case. This also means the intention of the Constitution as well.

18^th Amendment undoubtedly is one of the bizarre constitutional amendments. As I stated in my previous article “It was a major mistake by Dr Shirani Bandaranayke, as the Chief Justice, to allow the bill to have passage only through 2/3 majority without a referendum and without having a full discussion in the country.” On a similar occasion, late Pran Chopra, stated the following and it is worth quoting.

“The central issues in the debate arises from political philosophy rather than constitutional law. Can a Constitution provide for its own subversion? How far can a Constitution be amended and still retain its original intents and purposes?” 

The original 1978 Constitution itself is not an admirable democratic constitution. Among several adverse amendments, the 18^th Amendment undoubtedly is the most treacherous even subverting the basic safeguards of the original constitution. There is a fundamental contradiction between the original Constitution and the 18^th Amendment. What is primary is not the intentions of the 18^th Amendment but the intentions of the original Constitution. Any judicial review should take this matter into account. In 1993, the architect of the Constitution, JR Jayewardene himself expressed the view that the six year term period should have been limited to four or five years. The removal of the term limit obviously is beyond the intentions of the original drafters.

This does not mean that the people or their law makers cannot alter the original intentions of a constitution, but it should be done through a people’s mandate i.e. a referendum under the present Constitution. People in Sri Lanka have voted for governments who promised to abolish the presidential system three times in 1994, 2000 and 2005. Their intention is clear. The intention of those who passed the 18^th Amendment however is not clear.

Since the promulgation of the 18^th Amendment, three constituent partners of the UPFA, the Communist Party (CP), the Lanka Sama Samaja Party (LSSP) and the Sri Lanka Muslim Congress (SLMC) have expressed their reservations or opposition. The Amendment was proposed as an urgent bill in Parliament and rushed through a two thirds majority. As a result, the members of parliament or the public in general had extremely little time to discuss the full implications of the Amendment. Within the UPFA circles it was kept a secret until the eleventh hour.  The SLMC General Secretary and Member of Parliament, M.T. Hasen Ali, last year said (Ceylon Today, 27 August 2013) “In fact, I can openly say, I did not support it. I was forced to support it.” This is a terrible indictment of the way politics is conducted within the UPFA.

Prathibha Mahanamahewa in his interview today to the Daily News (giving perhaps his legal advice to the government as the ‘independent’ Human Rights Commissioner!) has expressed the view that without waiting anyone to challenge the question after the nominations, for example former CJ Sarath N. Silva, the matter should be referred to the Supreme Court beforehand. That perhaps be advantages to the government at least seemingly. If that is referred to the SC, however, then the people should also petition the Supreme Court that the previous decision to allow the passage of the 18^th Amendment without a referendum and only with a 2/3 majority also should be reviewed as it fundamentally contradicts the Intent of the 1978 Constitution.

However it is not sufficient if the third term is challenged only as a legal issue.

Political Challenge

The weaknesses of the effort to challenge the third term only through legal terms in my opinion are mainly two fold. First and foremost, the issue is a moral and a political one and should be considered that way in educating the people of the political dangers of a third term of a President whoever is the person. Second, there is no guarantee at all that the legal battle on the matter can be won easily given the submissive nature of the judiciary and other legal complications involved in the matter. No person or even a former Chief Justice could give such a guarantee. The legal battle should be considered part of the educational and the political process. At least there should be a Plan B.

Assuming that the President Rajapaksa contests or allowed to contest a third term, what might be most important is to challenge the third term at the presidential elections. This is where the JVP’s expressed policy appears to be defective and an agreement and consensus between different political parties and civil society organizations in the opposition are important. The JVP has expressed the view that it would strongly challenge the nominations of President Rajapaksa in courts and if fails they would boycott the presidential elections declaring it as illegal (Colombo Page, 4 October 2014). This is a repetition of their policy in 1988 which was underlined by their insurrectionary policy at that time.

It is important that all opposition parties work within the available democratic framework and desist from any extra-parliamentary deviations. Particularly in educating people on the danger of a third term, the JVP has a major role to play as it has already begun. However, the utilization of that kind of a campaign to deviate from the democratic and peaceful path would allow the incumbent government or any government to suppress that kind of a resistance. It is important that the JVP remains within the democratic path.

What might be necessary to prevent a third term for the incumbent President Mahinda Rajapaksa and his family rule is a strong and a common candidate from the opposition on a democratic and a progressive platform. It is obvious that the main opposition party, the UNP, has a major leadership role to play in this respect. The prevention of the family rule, the attempted third term and the abolition of the executive presidential system are closely linked. While the National Movement for Social Justice (NMSJ) has played a decisive role in making the people or the political parties understand the need for the abolition of the presidential system, it is obvious that a single issue is not sufficient to make a decisive democratic change in the country.

A common platform for a common candidate could constitute the following.

• Stopping family rule for a third term.
• Abolition of the executive presidential system.
• Restoration of rule of law.
• Pro-poor development policy.
• Development without corruption and political discrimination.
• Preservation of Free Education and Health Care.
• Reinstatement of the 17^th Amendment and an independent public and police service.
• Implementation of the 13^th Amendment with cooperation and through dialogue.
• Independent and non-aligned foreign policy.
• Promotion and protection of human rights of all communities and socially disadvantaged groups.

Even if there is no possibility for all opposition parties to agree upon a common platform such as above, the main opposition party the UNP could incorporate such a program to seek common support. Assuming that the TNA is a willing partner for a common platform/candidate, the JVP should be able to support a common candidate on the basis of pro-poor polices and the preservation of free education and health care.

I still maintain that the ideal common candidate, as stated twice before, could be Karu Jayasuriya, preferably resigning from the UNP to symbolize his neutrality among the opposition parties or forces. He should immediately dissolve parliament to hold elections for a new government to be formed obviously under the UNP leader, Ranil Wickremasinghe. If the UNP leader’s pledge to abolish the executive presidential system is reliable or to be achieved without delay, that is the consistent and the best strategy. This could also be the NMJS’s condition to support a common candidate from the UNP to achieve its main objective in abolishing the executive presidential system.