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Sarath Silva has raised a legal issue whether the incumbent President is ualiied in law to be elected to oice or another term.!he issue is based on Article +&,+,a-,io the Constitution which reads as ollows4 "no person who has been twice elected to the oice o be eligible to hold another term"!he columnist has stated$ "silva is really going or the 2ugular and wants to throw
Sarath Silva has raised a legal issue whether the incumbent President is ualiied in law to be elected to oice or another term.!he issue is based on Article +&,+,a-,io the Constitution which reads as ollows4 "no person who has been twice elected to the oice o be eligible to hold another term"!he columnist has stated$ "silva is really going or the 2ugular and wants to throw
Sarath Silva has raised a legal issue whether the incumbent President is ualiied in law to be elected to oice or another term.!he issue is based on Article +&,+,a-,io the Constitution which reads as ollows4 "no person who has been twice elected to the oice o be eligible to hold another term"!he columnist has stated$ "silva is really going or the 2ugular and wants to throw
I write to you in response to the Article bearing the above title published in the "Political Watch" Column o !he Sunday Island o August "#$ "%&#. !he Article claims to be a response to an interview o mine published in the Irida'an(adeepa o August &). I raised a strictly legal issue whether the incumbent President$ who has been twice elected to oice$ is *ualiied in law to be elected to oice or another term. I he is not so *ualiied$ whether he is entitled in terms o Article +&,+,a-,i- o the Constitution to direct the Commissioner o .lections to hold a premature Presidential election ater the e/piration o our years in oice$ on the basis that he is eligible to hold oice or a urther term. I have$ upon a clear analysis o the law e/pressed the view that the incumbent President who has been elected to oice twice is dis*ualiied rom being elected again and that he is not entitled to call or a premature election. Notwithstanding that$ i the President issues a Proclamation directing that an election be held$ that I would institute proceedings in the Supreme Court to restrain the Commissioner o .lections rom holding an illegal premature election. I have clearly stated that the President is entitled to continue in oice till November "%&0 and o course the Commissioner will hold the election prior to that day. 1n this e/pression o a clear opinion the columnist has stated$ "Silva is really going or the 2ugular and wants to throw the spanner into the wor(s by bloc(ing the ne/t Presidential election with litigation" 3ar rom it$ I want a Presidential .lection to be held in due time according to the Constitution. !he issue I raised is based on Article +&,"- o the Constitution which reads as ollows4 "No person who has been twice elected to the oice o President by the People shall be *ualiied thereater to be elected to such oice by the People" !he basic Article o the Constitution with regard to the e/ercise o the Sovereignty o the People is Article #. !he Supreme Court has repeatedly held that any law inconsistent with this Article has to be approved by the People at a 5eerendum. Article #,b- reads as ollows4 "!he e/ecutive power o the People including the deence o Sri 'an(a$ shall be e/ercised by$ the President o the 5epublic elected by the People." I we relate the dis*ualiication in Article +&,"- to the basic Article #,b-$ any person twice elected to the oice o President is dis*ualiied rom e/ercising the e/ecutive power o the People pursuant to a uture election. !his is a very serious dis*ualiication. !hat is why those who ramed the Constitution attached the dis*ualiication to a person at the earliest possible stage in time. Please note that the person becomes thus dis*ualiied immediately upon election$ well beore ta(ing an oath and assuming oice. Certainly beore doing any oicial act. !his is a uni*ue dis*ualiication in the Constitution being the Supreme 'aw o the 5epublic. 1nly three persons have become thus dis*ualiied. !he irst was President 6.5. 6ayawardene$ the second was President Chandri(a 7umaratunga and the third was President 8ahinda5a2apa(sa. I used the past tense intentionally because President 8ahinda5a2apa(sa became dis*ualiied the day he was elected$ on 6anuary ")$ "%&%. President 6ayawardene graceully abided by the uni*ue dis*ualiication imposed by the Supreme 'aw o the 5epublic and bowed out o oice. So did President 7umaratunga. !he third thought otherwise$ that he will get past this dis*ualiication$ using the power bestowed on him by a trusting People$ to whom he solemnly promised that he would abolish the ./ecutive Presidency. 9aving been elected on that solemn promise$ President 5a2apa(sa lost no time in initiating the &:th Amendment to the Constitution in the Cabinet o 8inisters o which he is the head. !he &:th Amendment is not or the beneit o the People and the Country. It is entirely or the beneit o President 5a2apa(sa. It see(s on the one hand to entrench him in power or as long as he pleases and on the other to restore the harsh and oppressive powers o the e/ecutive President that had been brought under essential chec(s and controls by the &)thAmendment through the mechanism o the Constitutional Council$ a ;ody within the purview o Parliament. !he &)thAmendment was the most progressive piece o legislation under the &<): Constitution which was adopted unanimously in Parliament$ with even 5a2apa(sa voting or it. !hus what happened in reality is 2ust the opposite o what was promised to the People. We are concerned here only with the irst aspect. Clause " o the &:th Amendment merely states that paragraph ,"- o Article +& is repealed. President 5a2apa(sa appears to have thought that by virtue o this repeal$ he can be elected as President or any number o times as he pleases. ;ut ortunately or the country he did not comprehend the precise way in which the dis*ualiication operated under Article +&,"-. !hat$ it too( eect immediately upon being elected to oice or the second term on 6anuary ")$ "%&%. !he repeal o Article +&,"- ta(es eect only when the Spea(er certiied the &:th Amendment on September <$ "%&%. !he columnist has cited several cases rom the =nited States and contended that the Amendment has retrospective operation. !hose 2udgments merely establish that the legislature can enact laws that have retrospective eect and i so enacted the Courts will give it such retrospective eect. !he columnist need not have delved into =S Case 'aw. Article o )> o our Constitution states clearly that "Parliament shall have power to ma(e laws$ including laws having retrospective eect". In terms o Article :%,&- a ;ill becomes law when certiied by the Spea(er. It becomes operative rom that date onwards. 'aws are ordinarily prospective in operation. I it is to be retrospective in operation the ;ill should state clearly rom what date it becomes operative. In this instance the repealed o Article +&,"- too( eect on September <$ "%&%. !he dis*ualiication o President 5a2apa(sa had ta(en eect eight months ago. 9ypothetically$ i the Parliament intended to remove the dis*ualiication o President 5a2apa(sa the words "Article +&,"- is repealed with eect rom 6anuary "0$ "%&% would have had to be included. ;eing more generous$ i Parliament intended to remove the dis*ualiication o President 7umaratunga as well$ the repeal would have had to come into eect on ?ecember "&$ &<<<. 1r$ it would have stated that Article +&,"- is deemed never to have been enacted and even President 6ayawardene could be have become *ualiied posthumously. All hypothetical situations cited by me would ma(e a moc(ery o the legislative process. !he irm position is that a repeal o a provision o the Constitution cannot have retrospective eect. !he Constitution is the Supreme 'aw o the 5epublic and what has ta(en eect in terms o the Supreme 'aw cannot be ta(en away. With due respect to the Columnist$ I would reserve urther elucidation o this matter to a uture occasion. Since the Article in *uestion is a response to my interview published in the Irida 'an(adeepa$ I am copying this to its sister newspaper$ !he Sunday !imes. Posted by Thavam