20 October, 2017

The Two Bizarre Constitutional Questions!

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. Laksiri Fernando

It may appear that Mahinda Percy Rajapaksa has preempted Sarath Nanda Silva. But you never know. The latter may appear before the Supreme Court before the verdict on the 10th. An intriguing constitutional situation has arisen in this serendipity (does it mean strange?) Sri Lanka with two bizarre questions being referred to the Supreme Court by the former in his apparent capacity as the incumbent President. They were buddies few moons ago.

Two questions are ordered alphabetically (a) and (b). Logically speaking, (b) should have come first which questions whether there is any ‘impediment’ for him “to be elected for a further term of office.” Rationality, however, does not appear to be of any concern for the existing regime. Both questions are bizarre but the first more than the second.

Election or Mandate?

Look at the following formulation in the first.

“…to declare by Proclamation my intention of appealing to the People for a mandate to hold office as President by election, for a further term…” (My emphasis).

Mahinda Rajapaksa ROf course the formulation comes from the 3rd Amendment to the Constitution that JR Jayewardene stealthily passed in August 1982. But now with the 18th Amendment, which was exception before has become the rule.

Incumbent presidents after the first elections are not going for competitive elections but to seek “a mandate to hold office.” This is no longer democratic. It was bizarre before. But now it has become a catastrophe for democracy.

This is something that all Supreme Court Judges should take into account, if they are independent, in expressing their opinion on the first question referred to them by the President. This formulation itself contradicts the sovereignty of the people and their franchise.

Bizarre and Bizarre

Sri Lanka is becoming bizarre and bizarre under the Rajapaksas. Have you tried to log on to the official website for the Constitution?

Still the 18th Amendment is not incorporated. Who cares for the Constitution, one may ask. Definitely not the government or the officialdom. If you go by that text, Percy Rajapaksa is definitely out in two years’ time. That should be the case for any healthy democracy.

There is a glaring contradiction between the two questions. In the question (a) ‘the date of commencement of the second term of office’ is stated as ‘19th November 2010.” That is not incorrect. But the following is what it says or asks in question (b).

Whether in terms of the provisions of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, and as functioning as such on the date the 18th Amendment was enacted, have any impediment to be elected for a further term of office.”

How come that he was ‘serving his second term of office as the President’ ‘on the date the 18th Amendment was enacted’? This is contradicted by the statement in the first question quoted before, which is obviously the correct one.

How come that the Supreme Court could give an enlightened opinion or verdict on contradictory assertions? There is all reasons to dismiss the submission as bizarre and not based on fact or clear constitutional premises.

Trick Behind

As the Asian Human Rights Commission (ARHC) has already stated there is a political trick behind the questioning. This goes beyond the intention of tricking Sarath N. Silva. This is obvious from the order of the questions and the confusing statements and resulting contradictions between the two. The reason is also obvious.

The disability pertaining to Percy Rajapaksa derives from Article 31 (2) of the Constitution before the 18th Amendment which refers to ‘second election’ and not the ‘second term’ which is clear from the following.

31 (2) “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.” (My emphasis).

Of course this is repealed for the future from the date of the Amendment of 8th September 2010, but not for the past. The ability to call for early elections both in the 3rd Amendment and the 18th Amendment hinges on the ‘second term’ and not the ‘second election.’ This is itself a bizarre situation but that is the obvious constitutional position. No one can bypass one to achieve the other.

According to the Constitution, Percy Rajapaksa became ‘disqualified thereafter to be elected’ on 27 January 2010. For some reason, this disqualification was not removed by the 18th Amendment.

It is very clear that President’s question (b) has not referred to any Article or any section of Article of the Constitution. It refers to the ‘provisions of the Constitution’ in general and the ‘18th Amendment’ again in general. Why? It is very clear that there is no clear article that the President’s claim can be justified.

Under the above circumstances, the decision of the Supreme Court is most likely be political, like in many instances in the past, and not judicial. It would be good for the future at least few judges act independently and make it a divided decision.

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Latest comments

  • 3
    1

    He has been twice elected, and is therefore ineligible to be elected again – granted.
    But, he has the intention to contest the presidency again – this is not disallowed/prohibited.
    Therefore, the Elections Commissioner cannot disallow his application to CONTEST a third time.
    If HE IS AGAIN ELECTED, what happens?

    • 2
      1

      I am really lost here. 18th amendment is done by MR and passed through the parliament in 48hrs. If there are flaws in the writing or if it is not doing what MR wanted to achieve, then what prevent MR making 18+ or 19th amendment and pass it in 48 hrs. When MR gets the verdict from SC, it is much easier for his law experts (MohanP) to draft 18+ or 19th…. I can’t understand the fuss here… MR is the law and he is the constitution too, and majority S-Sinhalese love it…

    • 5
      1

      As Bizzare as it may sound.

      Please accept Sri Lanka is an entrenched Banana Republic now. Run by King Kong, his family clan, cronies and henchmen. Supported by a corrupt Judiciary, Military and Police.

      All these legal points and debates are only academic. Not relavant. Not going to change anything.

      The world’s most unlucky country has ended up in this bloody messs now. Right after getting rid of 30 years of terrible violence.

      Getting rid of this regime is gonna’ be a long haul. And it is going to be very messy. Better buckle up!

      Bizzare!

    • 2
      0

      Dr. Laksiri Fernando

      The Two Bizarre Constitutional Questions!

      Can you include these two questions as well on the Common Sense Pamphlet?

      Ask do we need a permanent King or President or Not?

      Common Sense (pamphlet)

      http://en.wikipedia.org/wiki/Common_Sense_(pamphlet)

      Common Sense[1] is a pamphlet written by Thomas Paine in 1775–76 that inspired people in the Thirteen Colonies to declare and fight for independence from Great Britain in the summer of 1776. In clear, simple language it explained the advantages of and the need for immediate independence. It was published anonymously on January 10, 1776, at the beginning of the American Revolution and became an immediate sensation. It was sold and distributed widely and read aloud at taverns and meeting places. Washington had it read to all his troops, which at the time had surrounded the British army in Boston. In proportion to the population of the colonies at that time (2.5 million), it had the largest sale and circulation of any book published in American history.[2]

      Common Sense presented the American colonists with an argument for freedom from British rule at a time when the question of whether or not to seek independence was the central issue of the day. Paine wrote and reasoned in a style that common people understood. Forgoing the philosophical and Latin references used by Enlightenment era writers, he structured Common Sense as if it were a sermon, and relied on Biblical references to make his case to the people.[3] He connected independence with common dissenting Protestant beliefs as a means to present a distinctly American political identity.[4] Historian Gordon S. Wood described Common Sense as “the most incendiary and popular pamphlet of the entire revolutionary era”.[5]

    • 0
      0

      0 1 2 – only two times is it

  • 3
    4

    What is bizarre is not how Mahinda Rajapaske is being nasty. Its kind of expected.

    What is bizarre is why the Executive Committee of the UNP keeping Ranil Wickramasinghe there even after the 25th defeat! When Karu J. put his hat in, bizarrely he was rejected.

    The UNP has totally unbalanced Feng Shui in my opinion. Its too much yin and less of yan. In other words, too much vagina and less cock.

    The UNP has traditionally being Right-wing conservative. It has swung too far into right-wing liberal territory under the LGBT crowd. No biologically as intended crowed will vote for this party when its like this.

    They need Champaka Ranawaka as the common candidate for right-wing conservative flavour to balance things out. JHU and UNP are ideologically the same. Although the UNP is less conservative.

    With Gen SF, Champika, the UNP has a chance of winning. Or risk losing the 26 consecutive election.

    • 5
      1

      LOL Get JHU to contest on their own and win one YES ONE seat !

      Remember what happened to our Wimal’s heroics in Sinhala heartland of Moneragala. If memory serves me right, 4000 paltry votes.

      Of course give your racist writings I am not surprised you will be flocking to the kind like Champika !

      • 1
        4

        Well,

        Champaka Ranawaka is conservative right. I cannot recollect you ever calling TNA as “racist”. Although Champaka is the opposite of TNA.

        Champaka has some integrity unlike others. So he can add value as a trusted fellow with an anti-corruption flavour.

        He will be balanced with the UNP liberal faction.

        • 2
          1

          I am not talking of the TNA. I am only responding to your OWN comment on Champika.

          As some others have suggested and I have suggested here, Champika will never leave the UPFA fold, just like that Dinesh Gunerwardena won’t.

          These are parties that cannot even get there deposit back if they contested alone.

        • 1
          0

          Vibhushana

          But Champika Pachawaka lies and has a low I.Q.

          Champika Ranawaka Is Conning?

          By Shyamon Jayasinghe –

          Readers, don’t miss a treat: Go to the following link and you will find a must-listen video of Minister Patali Champika Ranawaka (PCR) addressing a Paris crowd of Hela Urumaya followers:

          https://www.colombotelegraph.com/index.php/champika-ranawaka-is-conning/

  • 0
    2

    Well, your traditional thinking will not work if you want UNP to win isn’t it?

    I did say “If UNP wanted to win”.

  • 0
    0

    Prof. Laksiri,

    What is not bizarre in Sri Lanka, except the land, sun, moon and the stars, which are not under the control of our politicians?

    Dr. Rajasingham Narendran

    • 2
      0

      Dr.Narendran:

      Even the best brains can get things wrong sometimes and how wrong can you be. You may be right when you say that the Sun Moon and the Stars may not be under the control of the Politicians.
      You are ceratinly wrong about Land and as you can see Mahintha controls Land and that is why we have large scale colonisation of Sinhalese Settlements in Tamil Land taken illegally as there is no tomorrow.

      LAND LAND & more LAND. Mahintha has answered Thutta Gemunus prayers. Tamils to the North Sea to the South.
      In no time there will be no Tamils left and we will be buried in Sinhal Ses.
      But dont despair help is on hand. As soon as Tamil Land ( Trinco Harbour) is handed over to Chinese ( The Lease has already been signed ) the next batch of TNA will arrive as the forward party is already here.

  • 2
    0

    Dear Dr.Fernando

    I hope Mr.Silva succeeds for the Nations sake. But I have a feeling that MR the Kings stooges at the SC will argue that there was no need to go to the Country to ratify the 18th Amendment as the King has already given the Royal Seal of approval using the powers vested in him.
    This is Mahinthas Kingdom.

  • 0
    0

    If section 31 (2) “Any person who has been…” President Rajapaksa is disqualified to contest again. But when it says “No person who has been..” It means at the time of calling nomination in the next election of president “No person who has been…”.

    But, But Sinhala text prevails over the English. Therefore we need to look at the Sinhala text, that wording is more towards “Any person who has been…”

  • 0
    0

    What ever the legalities you guys are talking about have you given little attention to how this constitution was created. JRJ and UNP co has obtained a 5/6 majority of the house by earlier method of election, continue the same majority in the new house which they would never have got under the current system. They did not hold referendum or an election to validate the current constitution. Also they extended the term of its on office by more than one year still without any referendum, but just using the 2/3 majority clause.
    Then at the end still they did not hold election. They brought a referendum and also disqualified the then leader of opposition contesting.
    JRJ himself was disappointed man for having 2 terms to go. Having two terms any way is bad democracy. When the president get elected for second term he does not have to do any work as he knows he has to go. He can be corrupt and can treat his friends and relations as he wish. But having the electorate to decide whether the president can hold office more than two terms is more democratic.
    Look at UK, Canada, Australia and NZ. There is no term limits for the leader of the country. Always it is the electorate which refuse them.
    It is funny that very people who shoved this constitution on the masses now trying to take credit by making a big show to abolish it.
    MR do not have to worry. He has a large voter base who will elect him in to power. The media hype UNP and its supporters have will establish its truth in due time. But we have time to identify who are these traitors are in the meantime.

    • 0
      0

      In UK, Canada, Australia, people do not select or elect the country leader. It is the political party which select the PM. Presidential systems are different.

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