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"Sarath Silva and MRs third term"

by Sarath N. Silva-August 30, 2014

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
!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
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
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
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
Posted by Thavam