Presidential Election 2015: The Question of Being Elected for the Third Term

Today, election fever has taken over the whole country. It is hard to find anyone not interested in upcoming presidential election. This presidential election is one of the most critical presidential elections in Sri Lanka only second to the 2005 election. This election was controversial even before it began. There were doubts about the authenticity of the election and the ability for the incumbent president to call and participate in it based on the interpretation of an amendment of the constitution.  Now, although that problem is solved, it is important to know the fundamental question relating to that anomaly so as a politically inclined citizen you may be able to grasp the main flaw of the executive system in Sri Lanka.

Sri Lankan president Mahinda Rajapaksha called a presidential election after just four years in to his second term. The general public who had anticipated this as a political move to win another election by Mr Rajapaksha, before his popularity fades away. No one tried to question the legality of this until suddenly former Chief Justice Sarath Nanda Silva came with a controversial point suggesting due to the date of the introduction of the 18^th amendment to the constitution, Mr Rajapaksha, who was elected by  the people for the post of the Executive president twice, can’t contest for this election.

President Rajapaksha has amended the constitution with 2/3^rd majority on 9^th September 2010. Apart from enhancing the presidential powers and shredding independent commissions, it amended the limit on number of times a person can be elected to the post of president by the people.

The argument from the opposition including former CJ and the president of the Bar association was that since Mr Rajapaksha was elected for the second term by the people before the enactment of this amendment , the freedom to be elected for the next term will not be available to him. The opposition also pointed out that since this amendment was hastily prepared, the framers of that forgot to make the article 2 removing the limitation retrospective. If that is a non-retrospective one, how can that be valid to situations that already occurred before the enactment of this amendment.

President Mahinda Rajapaksha was elected for the second term on 27^th January 2010. This was way before the enactment of the 18^th Amendment. Technically, according to the 31(2) which was still valid when Mr Rajapaksha got elected for the 2^nd term, he was unqualified for the candidacy for further term. Eighteenth amendment being a non-retrospective legislation, prevents the new conditions taken in that amendment to be applied in to the unqualified Rajapaksha. This was the main point brought by Sarath Nanda Silva and the opposition.

They immediately went into lobbying for Rajapaksha’s inability to enter into another election. Since, he is also disqualified from calling an election after 4 years; they argued that this election was invalid. When Mr Siva was preparing to bring this matter to the court, Rajapaksha himself asked the opinion of the Supreme Court with the power granted to him by the article 129 of the constitution. Constitution has given its opinion backed by a full-bench affirming Rajapaksha’s right to call up the presidential election and they also affirmed his right to get elected for the 3^rd term.

Now that episode was over. Mr Rajapasha and his rivals are preparing for a fierce battle for power. Presidential media campaigns are in the full swing. Although the opposition, former CJ who first raised the legal point and the Bar association went silent after getting the opinion of the Supreme Court against their favor, as political citizens we have a right to know truth behind this allegations and the constitutional interpretation regarding this issue.

Section 31(2) of the 1978 imposes the limitation of number of times.

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.

By the section 2(1) of the 18^th amendment, it was repealed.

Sri Lanka (hereinafter referred to as the “Constitution”) is hereby amended in Article 31 thereof, as follows:—

(1) by the repeal of paragraph (2) of that Article; and

(2) in paragraph (3A) (a)(i) of that Article—

(a) by the substitution for the words “at any time after the expiration of four years from the commencement of his first term of office” of the words “at any time after the expiration of four years from the commencement of his current term of”; and

(b) by the substitution for the words “by election, for a further term.” of the following:— “by election, for a further term: Provided that, where the President is electedin terms of this Article for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected.”

When we analyze the above timeline, the main divisor of that is the enactment date of the 18^th Amendment, 9^th September 2010. Before that the existing law disqualify anyone who was elected twice form contesting again. Until the 8^th of September 2010, Mahinda Rajapaksha who was elected for the second term in January 2010 was disqualified from entering into an election. The controversial question was what will happen to the law after 9^th of September 2010?

Article 2(2) of the Amendment is clear. With the substitution of the words, the incumbent president Rajapaksha can call for election after 4 years in to his second term. Regarding the 2(1), a different story immerges. Rajapaksha was disqualified from being elected after his second term commenced in January.  Will that position be changed with the enactment of the 18^th Amendment without retrospective legislation? This is the critical question to which we need to answer

The answer can be found not in the date of the enactment but in the declaration date of the 2015 presidential election. Rajapaksha declared the election on 20^th November 2014. Till that date, president was not decided to be elected by the people. We need to look for the disqualification on based on that date not the date of his second term in January 2010. It is obvious that the law existing in November 2014 doesn’t have the limiting factor of Article 31(2) because it was repealed by 18^th Amendment.

According to the opposition, the president will be automatically disqualified when the was elected for the 2^nd term but the question of whether he can or can’t be elected (declaration of next election) should be at least 4 years from the date of the second term. Until that the question of 31(2) was not to be arisen. When that finally comes in 2014, the limiting factor was already gone for more than 3 years giving Rajapaksha the legal authority to call an election and to contend for the presidency.

The Supreme Court, on full bench affirmed Mr Rajapaksha’s right to call for an early election and to be elected by the people. Although, the legal matter is settled, there is the question of morality of this move. It is clear that Rajapaksha was trying to hold on to power as long as possible. The decision to remove the limitation on a third term was seen as an enhancement of democracy even by the former CJ Mrs Bandaranayake, it is ironical that she who was supportive of Rajapaksha’s plan becoming a victim of his wrath.

Now it seems to be a waste of time to go through the validity of 18^th Amendment’s article since the issue raised above will never be raised again but it is important to see how the leaders go through the holes of the law and manipulate the supreme law of the country to forever hold on to power.

With the presidential election coming, the nation is at crossroads. We have to choose either political stability with clandestine democracy or a frail promise from a ragtag bunch of party outcasts to change the executive presidential system. The choice is at the hands of ordinary people who don’t know much about the political stigma attached to this election. Will the common man make the correct choice? What are the repercussions of their choice?

“The answer, my friend, is blowin' in the wind, The answer is blowin' in the wind"