SLPP chairman GL Peiris says 19th Amendment not retrospective, so former president could contest; Supreme Court interpretation to be sought No special “monitoring” allowance for MPs Coalition partners launch development programmes at lightning speed before polls, but will these win hearts and minds of voters? The likelihood of three major contenders at the next presidential [...]


Possibility of Mahinda Rajapaksa contesting next presidential election


  • SLPP chairman GL Peiris says 19th Amendment not retrospective, so former president could contest; Supreme Court interpretation to be sought
  • No special “monitoring” allowance for MPs
  • Coalition partners launch development programmes at lightning speed before polls, but will these win hearts and minds of voters?

The likelihood of three major contenders at the next presidential elections now hinges on a potential Supreme Court interpretation of constitutional provisions.

The two, now certain, are President Maithripala Sirisena from the Sri Lanka Freedom Party (SLFP) and Prime Minister Ranil Wickremesinghe from the United National Party (UNP).

Till now, it was the considered view that Mahinda Rajapaksa was disqualified from contesting for a third term in accordance with Article 30 (2) of the Constitution. It said that “No person who has been twice elected to the office of the President shall be qualified thereafter to be elected to such office by the People.”

His first term was from November 2005 till the same month in 2010. In fact, he could have continued till November 2011 but called for presidential elections a year early. He was elected in January 2010 but took his oaths only in November of that year for the second term that ended on January 8, 2015.

A new legal argument that it was possible for Rajapaksa to contest surfaced at the party leader’s meeting of the ‘Joint Opposition’. It was held at the former President’s official residence at Colombo’s Wijerama Mawatha last Tuesday. It has been the talking point among some ‘JO’ stalwarts for more than two weeks. This was when they consulted legal opinion and spoke informally to those at the National Elections Commission. A former Foreign Minister and one-time Colombo University Vice Chancellor and Professor of Law, Dr. G.L. Peiris opined that the 19th Amendment to the Constitution does not impose a bar on former Presidents who have completed two terms.

In laymen’s language, he explained, that the 19th Amendment was prospective (not retrospective) and the restrictions applied only to the current President and those to be elected thereafter. That meant, he argued, that the two term limit would only apply on the incumbent President and not on those who held office before. The remarks saw Rajapaksa guffaw “Mama ovata usavi wala avidinna kemethi nehe” or I don’t want to roam the Courts for that purpose. Peiris had the answer. He said that any Sri Lankan citizen who is a voter could move the District Court (DC) with regard to restrictions over two terms. Eventually, he said, the DC would in seek an interpretation from the Supreme Court, a process that would have to be completed within two months. In the alternative, it was also suggested, that a citizen could file a Fundamental Rights application in the Supreme Court.

The view was endorsed by John Seneviratne, a former Labour Minister and a lawyer. He said he was in agreement with Peiris that the 19th Amendment did not impose a two-term restriction on those who had served as Presidents before. There was consensus that the matter should be pursued. It became clear at the meeting that Rajapaksa will not directly involve himself in the exercise thus obviating possible criticism that he was in an undue hurry to contest a third time. “He will allow the JO leaders to do what is necessary,” an aide said. However, there is little doubt, he would welcome a move in his favour. That will rid him the task of deciding on another family member — a move which is bound to generate some controversy whoever such candidate is.

The 19th Amendment Provisions which became effective from May 15, 2015, deal with the issues in focus as follows:

3. Article 30 of the Constitution is hereby repealed and the following Article substituted therefor:-

30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces. Replacement of Article 30 of the Constitution.

“The President of the Republic. Nineteenth Amendment to the Constitution 3 (2) The President of the Republic shall be elected by the People and shall hold office for a term of five years.”

4. Article 31 of the Constitution is hereby amended as follows: – (1) by the insertion immediately after paragraph (1) of that Article, of the following new paragraph:-

“(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.”

“There is validity in the argument that the 19th A does not disqualify persons who have contested the presidential elections twice before,” former Chief Justice Sarath N. Silva told the Sunday Times.  The earlier 18 A, he noted, removed the disqualification on those who had served two terms. “In order to provide for a presidential term of five years, instead of six, they introduced a new provision in 19 A. That is for the term of the President through a newly introduced article. Thus, the restriction remained non-existent for previous incumbents since the 19 A is proscriptive,” he added. “It will only apply to the incumbent President and those thereafter,” he said pointing out that “it is easy to repeal a provision but difficult to introduce a whole new section.”

President’s Counsel Dr Jayatissa de Costa, a Constitutional lawyer, held a different view though he underscored the existence of a lacunae. He told the Sunday Times, “This is a matter which will need an interpretation from the Supreme Court. This is particularly since the 19 A does not specify whether a person who has been elected as the President twice cannot stand as a presidential candidate from the date on which the amendment became effective or with retrospective effect. Therefore, an interpretation from the Supreme Court is required.”

The possible entry of Rajapaksa, if by chance there is a potential ruling in his favour by the Supreme Court, will change the dynamics of the next presidential election considerably. At present who will be the ‘JO’ candidate has remained the focal point of attention with more weightage being given to former Defence Secretary Gotabaya Rajapaksa. That is on the basis that Mahinda Rajapaksa is debarred from contesting. In the event of a disqualification being non-existent, it will be cause for concern for both Sirisena and Wickremesinghe. So far, they have been going on the basis that it would be Gotabaya Rajapaksa or some other Rajapaksa instead of Mahinda Rajapaksa. Though not overtly declared, both, Sirisena and Wickremesinghe have begun their presidential election campaigns.

Sirisena will detail out his plans during the SLFP annual convention next month. Minister Mahinda Samarasinghe, a Sirisena confidant and now SLFP official spokesperson, told a news conference on Thursday that several dates had been proposed. They were awaiting a date convenient to the President, he said. Later this month, Sirisena will leave for Nepal to attend the BIMSTEC (Bay of Bengal Initiative for Multi Sectoral Technical and Economic Co-operation) summit. It will be held on August 30 and 31. He is also set to attend the 73rd UN General Assembly sessions which open on September 18. The high level segment, where heads of state speak, will begin on September 25.  Samarasinghe said once President Sirisena gives a date, arrangements will get under way for a major SLFP annual session. The President has speeded up development programmes in the North Central Province (NCP) and is gearing grassroots level organisations for polls.

Prime Minister Ranil Wickremesinghe speaking after a holy mass at the hallowed shrine of Our Lady of Madhu on Wednesday to mark the feast of The Assumption of the Blessed Mother. Several bishops, including the Archbishop of Colombo, Malcolm Cardinal Ranjith, Concelebrated the Holy Mass. Pic by Amila Gamage

Premier Wickremesinghe, who is the leader of the UNP, began his own campaign with visits to areas in the hill country where Tamil plantation workers are concentrated also visited the Madhu Church revered by the Catholic community. His previous visits have been to the north and demonstrate his efforts to garner the minority votes. UNPers believe that though delayed, the measures they have adopted to bring to book those involved in high profile cases of alleged bribery or corruption during the previous Rajapaksa administration through new High Courts at Bar would be salutary. Attorney General Jayantha Jayasuriya has begun forwarding to Chief Justice Priyasath Dep for approval at least ten cases. Most relate to members of the Rajapaksa family or their associates. Under laws governing the new courts, the Chief Justice is empowered to determine the cases to be heard by the new courts. In addition, the UNPers also believe their village reawakening programme Gamperaliya where new development projects yielding employment opportunities are being launched would be an added advantage, particularly in gaining majority Sinhala votes.

Rajapaksa’s possible entry as a presidential candidate is a boon for the opposition parties. At present he is the most popular political leader in the opposition. Contributing to that popularity is an element of public repulsion over the coalition government. Among many issues, the rising cost of living, continuing corruption at all levels, a breakdown in law and order, deterioration of discipline in the security sectors and Police and blatant violations of laws and procedures have added to the Government’s unpopularity. The public voted the coalition just over three years ago purely to correct these deficiencies but they have, among other matters like the drugs menace, proliferated.  These inactions have further contributed to Rajapaksa’s growing popularity. The coalition has allowed Rajapaksa to re-enter the fray with their failures.

On the opposition front, Rajapaksa’s possible candidature will unite them behind him. The fact that another candidate is to be fielded has created some divisions within and that will evaporate. If the February 10 local government elections are anything to go by, a segment of the Muslim community voted in favour of the Pohottuwa (budding Lotus flower) symbol of the Sri Lanka People’s Party (SLPP) despite voting almost en-bloc against Rajapaksa in 2015. Those votes are again likely for Rajapaksa. However, the question is one of Tamil votes from the north. One binding factor that prompted Tamil voters to support the Sirisena-Wickremesinghe combination en masse was their severe bitterness towards the Rajapakse administration following the defeat of the LTTE. Is there a rallying cause for them at the next presidential election? Would that mean many voters will not turn up at polling booths?

Most in the north complain that the coalition, particularly the UNP, reneged on its promise for a new constitution – a charge which they deny and assert that the process is still active. Despite the occasional noise, most Tamils in the north fear, there will be no more progress. The leadership of the Tamil National Alliance (TNA), that has been extending unqualified support to the UNP, has become unpopular paving the way for more hardline groups to emerge. They are widening their political base. The TNA’s support to the UNP for laws to put off Provincial Council elections has also cost it dearly with no positive signs that PC polls will be held before presidential election.  The TNA which won 65% of the northern votes at the August 2015 parliamentary elections only polled a paltry 35 % at the local council polls. Even in the unlikely event of PC polls, it could turn out to be a forerunner of what is to come next at both presidential and parliamentary elections.

There are many questions that arise in the event of a Mahinda Rajapaksa re-entry to the hustings. How will President Sirisena, the SLFP leader, react to such a situation? Will he still go ahead and contest? Or will the periodic overtures to re-unite become a reality? Would that change Sirisena’s posture in the light of uncertainties over a victory? If that were to happen, the chances for the UNP candidate to win the presidential election would be further dim. Yet, most of these issues remain uncertain until a potential Supreme Court interpretation is known, if at all it is taken to that court which sits as the country’s Constitutional Court.

Yet the SLFP-UNP coalition continues amidst frictions and failures. Last Tuesday’s cabinet meeting lasted only some 45 minutes during which ministers cleared several memoranda. The brief period prompted speculation that President Sirisena had walked out in protest though no reason was given. Several ministers received phone calls to ask why such a thing had happened. They all laughed it off. As is now known, some of the key UNP initiatives ahead of the presidential polls, ones that would attract votes, suffered a setback. One was Premier Wickremesinghe’s proposal to pay Rs 200,000 per UNP parliamentarian to monitor the Gamperaliya village re-awakening programme. Though their ministers were to raise issue at last Tuesday’s weekly cabinet meeting, Wickremesinghe has rolled back his proposal. No UNP minister pressed for it contrary to their public pronouncements after the previous week’s meeting. Thus, the proposal is virtually dead.

There were some embarrassing moments for UNP Minister Gayantha Karunatilleke, co-spokesperson of the coalition. His official reason why Premier Wickremesinghe did not go ahead with the “Gamperaliya” allowance? – “Some MPs felt that persons will misuse it to criticise the Gamperaliya programme.” How funny? Which MP would say “no” to a special allowance of Rs 200,000 and criticise any development programme? They have never protested in the past. Spokespersons now blame the media for not receiving coverage for the Government’s “good work” but find themselves unable to even offer a credible, believable reason. The answer is simple. Quite clearly the proposal would have been rejected by President Sirisena. On the first occasion he said it could be discussed “later” and asserted that the task could be carried out by the respective District Co-ordinating Committees. All MPs are members. This is how the Q & A at the news briefing on Wednesday to speak of matters at the cabinet meeting went on. The relevant part, tape recorded, has been translated from Sinhala to English:

Q: Earlier there was a cabinet paper to increase allowances of Monitoring MPs. Was it taken up again?

Gayantha Karunatilleke: No. As there was a proposal to pay allowances (not related to the Rs 200,000), some MPs felt that persons will misuse it to criticise the Gamperaliya programme. It is an important programme. Therefore, it was decided to continue the monitoring role without these allowances. (Note: He does not say who decided and why then was a proposal to pay more for “monitoring” was brought before the cabinet?)

Q: But was it taken up again at cabinet?

A: No

Q: Isn’t the Government paying a transport allowance for 55 MPs involved in a monitoring role?

A:  Yes, a transport allowance is being paid. We are not paying it secretly. It is not like the previous government who purchased Pajero Jeeps and distributed them to government MPs. Last government had two supervisory MPs for each ministry.

Q: What is the allowance?

A: If any MP has become a state or a Deputy Minister that allowance is removed. For instance Ranjith Aluvihare who was appointed as a state Minister will not get that allowance.

Q: Since the Gamperaliya  programme is now effective, will those MPs get the allowance.

A: Senaratne:  No decision has been taken as yet.

Q: What is the allowance paid currently?

A: Karunatilleke: I will have to check it and let you know.

These Q&As relating to payments to “monitoring” MPs raise some all-important issues. It was only since Wickremesinghe’s proposal to the Cabinet did it come to light that the UNF (albeit UNP} parliamentarians were receiving a monthly transport allowance of Rs 200,000. If two more proposals were to become reality in the recent weeks — a “monitoring” fee of Rs 200,000 plus a further Rs 100,000 increase in Parliament — the grand total would work out to Rs 500,000 or half a million rupees every month. That President Sirisena put his foot down prevented such an amount being paid.

One issue is how could Finance Minister Mangala Samaraweera, who has declared there was no money to pay to adjust salary anomalies of state sector workers, make provision for such a sum? How does he or his party leadership justify it particularly when it has not been possible to lower the cost of living? If spokesperson Minister Karunatilleke is right in saying MPs would criticise the “monitoring” allowance, would not the public of Sri Lanka criticise or even resent such a move? The argument that the previous government imported Pajero Jeeps and distributed it to MPs does not hold water. Those included reasons why the Sirisena-Wickremesinghe government was voted to power. Blaming the previous regime therefore does not help. If indeed there were irregularities, more than three years were long enough a time for such issues to be probed.

Also rolling back his proposal before the cabinet the previous week was Development Strategies and International Trade Minister Malik Samarawickrema. It was erroneously reported in these columns last week that he had sought cabinet approval to hire lawyers outside the Attorney General’s Department for cases involving ministries. That is wrong and I now stand corrected.

The private lawyers were sought by him to defend one of his own actions — the Singapore-Sri Lanka Free Trade Agreement (SLFTA) before the Supreme Court. It was he who concluded this agreement with Singapore. At least four different parties have filed fundamental rights petitions in the Supreme Court. They include the Government Medical Officers’ Association (GMOA) and the Bar Association of Sri Lanka (BASL). It is for this purpose that Samarawickrema read out a letter from Attorney General Jayantha Jayasuriya   saying that he had no objections to hiring lawyers outside his department. However, President Sirisena pointed out that Jayasuriya had told him verbally that his department could handle the matter. Talks with Singapore on the SLFTA began in July 2016 in that island nation. On January 17 this year, the Cabinet approved the final draft, according to spokesperson Minister Karunatilleke.

The petitioners have cited Minister Samarawickrema, the Director General of Customs, Members of the Cabinet of Ministers and the Attorney General among others as respondents. They claim that the action and/or decision of Minister Samarawickrema had no approval of the cabinet before the FTA was entered into with Singapore. It had been executed on January 23, 2018. In the event there has been cabinet approval, the petitioners have claimed, it was illegal and bad in law. The case from the GMOA has been listed for support on October 5.

However, the BASL has suspended its Court action. Its President U.R. de Silva said, “This followed President Maithripala Sirisena’s appointment of a Committee. We hope to submit our views to the Committee and we believe amendments could be effected.”

Amidst mounting criticism over the SLSFTA, President Sirisena appointed a Committee of experts to study the agreement. They will carry out a study on the SLSFTA, how it could impact institutions providing various services in Sri Lanka, its potential impact on the country’s social and economic situation and the people’s living standards, the President’s Office said.

The five member committee is headed by Prof. W.D. Lakshman, former Vice Chancellor of the University of Colombo and retired Professor in Economics. The other members are former Professor in Economics at the Open University, Sirimevan Colombage, former Professor in Economics at the University of Kelaniya, Ajitha Tennakoon, independent consultant Dr Sanath Jayanetti and the Central Bank’s former Assistant Governor R.A. Jayatissa.

The Committee has been told to forward their findings in two months.

Acting on the Free Trade Agreement with Singapore, Finance Minister Mangala Samaraweera, has issued a Gazette notification dated April 30, 2018 (under the Customs Ordinance) giving duty free or concessionary terms for the import of 3539 items from Singapore. The items included as duty free are import of asses, day old chicks, bees, rabbits, human hair, guts, bladders and stomachs of animals, waste human hair, eels, pigs, hogs and bristles, poppy straw, fuel oil, natural gas, frog’s legs, reptiles (snakes, turtles), municipal waste, sewage sludge, clinical waste, machinery for brewery, reconditioned mobile phones, electric golf cars, all-terrain vehicles (ATV), tankers, bowsers, garbage trucks more than five years old, artillery weapons (for example guns, howitzers and mortars), rocket launchers, flame throwers, grenade launchers,  torpedo tubes, cartridges, swords, cutlasses, ice skates, roller skates, fishing rods etc.

The appointment of the Committee is akin to putting the cart before the horse. This is notwithstanding provision in the agreement for one party to amend provisions with the consent of the other. At least by hindsight, it is now clear, the SLSFTA has been rushed through without much public debate or consultation. As a result, in the recent weeks, Minister Samarawickrema has been left to defend the agreement whilst the opposition is mounting. That President Sirisena has acknowledged the need to study the impact of the agreement acknowledges that a careful study has not been made before concluding the agreement.

With a presidential election campaign taking roots even without a formal declaration, the coming weeks will see significant events. Important among them is the move to seek an interpretation of constitutional provisions relating to presidential elections. That will portend the shape of political things to come. Even if the coalition is unable to cope with strike action and protests almost every week, the ruling coalition partners clearly focused on winning votes.

This is the time when “development” activity travels at lightning speed. Whether it will have a lightning effect on voters or so quickly win hearts and minds is the big question.


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