Columns

If G. L. Peiris’s wishful thinking that Mahinda Rajapaksa can contest the presidential election for the fourth time were to come true, then pigs can fly and cows can do summersaults over the moon.

G.L. PEIRIS: Mahinda can contest for 19A has no retrospective effect

Even as Jack and the Bean Stalk fairy tale recounts how Jack flung his magic pods and caused a stalk to grow so high to the sky which enabled him to climb and reach the castle atop where a giant lived and steal from him the golden hen which laid golden eggs; so did G. L. Peiris plant his convoluted seed of legal opinion to make grow a tree of controversy in the hope it would pave the way for a Rajapaksa return to lay the golden eggs again which they had all enjoyed sucking in the past,

Last week, this former Professor of Law and author of many a legal tome placed his legal reputation on the line when he publicly announced the queer notion that the ineligibility contained in the 19th Amendment that ‘a person who has been twice elected by the people was ineligible to contest again’ did not apply to Mahinda Rajapaksa and that if Mahinda Rajapaksa so wished to become President for the third time, there was no constitutional bar that prevented him from running for presidential office for the fourth time.

It was not a legal proposition that the former president had advocated during these last three years, ever since the 19th Amendment was passed in April 2015, with 223 out of 225 parliamentary members voting for it. To his credit, he had accepted the constitutional legal position ‘that a person twice elected to the office cannot contest again’ and had never made a statement to contradict it.

But not so his servile acolyte Peiris. The once eminent law professor now turned Mahinda porter, who was reduced to carry the former president’s physical baggage when he joined the ex-president’s entourage on a visit to Thailand two years ago, has now taken upon himself the added burden of placing his legal repute as authority as a legal academic on the line but offering his unsolicited gratuitous opinion that the former president is eligible to contest the presidential election, never mind the seeming bar contained in the 19th Amendment.

NIHAL JAYAWICKRAMA: 19 A has created new presidency

And maybe this time his legal academic neck rashly placed on the railway track is in danger of being severed by the imposing legal train of opinion that runs contrary to his stance: when Peiris has let his warped political interest take precedence and cloud his judgment over his once respected legal reasoning.
Last week, three years and three months after the 19th Amendment was passed with 223 out of 225 members voting for it, G. L. Peiris announced its import on the certainty of Mahinda Rajapaksa being eligible to contest for the presidency, irrespective of the legal bar that existed in the 19th Amendment. Holding a press conference he declared, that ‘it was the opinion of legal experts that ‘the provisions of the 19th Amendment do not have retrospective effect’ and that the 18th Amendment enacted under the former regime which removed twice elected presidents from contesting again and again still rules okay.

He did not say who these legal experts were who had expressed such an opinion. Even as a story planted in a national daily did not say who these legal eagles were who had expressed such a notion that the provisions of the 18th Amendment still remained intact, stirred perhaps but not shaken by the 19th Amendment.
The following day after the news report appeared G.L. Peiris watered it and added a compost heap of legal dung to make the sapling take root in the public mind with the sole intention the evergreen tree will soon bear the fruit of Rajapaksa’s hopes of being President again for the third time and possibly for life, never mind what the present constitution which contained the 19th Amendment declared.

But given the seriousness of the matter and the constitutional hornet’s nest that was being roused to sting the people into confusion, don’t you think it would have behoved him to name his legal sources instead of hiding behind the anonymity of nonexistent others? Was it not an obvious ploy to use a cover and express his own opinion? And if it was pooh-poohed to crawl and creep and take refuge behind the shadows of non-existent legal experts and claim it was not his own but the views held by shadowy legal figures?

But two days after his press conference, unsurprisingly, support for his views came from a most expected heart and hearth family quarter. From his own brother-in-law. From Dr. Nihal Jayawickrama, whose wife is the sister of G.L. Peiris’s wife. In an article published in the Island last Sunday, he tried to provide the meat to G.L.’s bone for the public to feed upon, gnaw and swallow whole.

In it, he declared that the “19th Amendment, by repealing and replacing Article 3 of the Constitution, abolished the existing office of President and replaced it with a new office of President.”
First question? How come?
Article 3 of the Constitution states that “in the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”

JAYAMPATHY WICKREMARATNE: Mahinda cannot contest

But did the 19th Amendment repeal Article 3? Especially when Article 83 of the Constitution states unequivocally that “a bill for the amendment or for the repeal and replacement of and which is inconsistent with Article 3 shall only become law if its approved by the people at a referendum and endorsed thereafter by the president thereafter according to Article 80.”

Is Dr. Jayawickrama saying that the Supreme Court bench were nodding when they approved the 19th Amendment and accepted the repeal of Article 3 without demanding not only a two third majority in Parliament to approve it but also a referendum to ratify it?

Can anyone remember a referendum held in March or April in 2015 asking the people to repeal, amend or replace Article 3 of the Constitution which deals with the inalienable sovereignty of the people?

Secondly, he states that the 19th Amendment has created a new Presidency. How come? His argument is that the 19th Amendment has curtailed the powers of the executive presidency and thus, therefore, the old presidency has fallen and a new one has risen in its stead.

He lists, among others, the curtailment of the president’s sole right to appoint ministers at his will and fancy without the approval of the prime minister. And holds this as being proof of the demise of the old dictatorial Rajapaksa presidency and the creation of a new castrated Sirisena presidency.

But he forgets to mention that according to the 19th Amendment, the president has sole powers to change their ministries, to change their subjects, functions, to place them wherever he chooses, to place them in a game of cabinet musical chairs with him as the ring master without any reference to the prime minister.
Plus, let’s not forget, he has the sole power to appoint out of the members in parliament the prime minister whom he thinks commands the confidence of the House. Even as Sirisena did when he chose Ranil as Prime Minister in January 2016 as a thanksgiving gift for his support even though his party had only 65 members in a House of 2015.

WIJAYADASA RAJAPAKSHE: 19A does not allow Mahinda to run again

Thirdly, Dr Jayawickrama says, “Article 30 of the Constitution is hereby amended by the substitution in paragraph (2), for the words “six years”, of the words “five years”. This according to him has created a new presidency. But has he, in his eagerness to cater to the desires of his B-i-L Peiris, that there is no bar in the Constitution for reducing the term of presidential office. Only a bar to increase it beyond the constitutional term of six years which would also under Article 83(2) of the Constitution would require a referendum. Reducing the term needs no referendum.

On what basis does Dr Jayawickrama make his preposterous assertion that the 19th Amendment, approved by the Supreme Court, has in anyway abolished the office of presidency and created a new one? Wouldn’t common sense dictate that if it was the case, then a referendum would have to be called for?
Throughout these last forty years of the JR Constitution, many amendments have been made: Nineteen, in fact. Does change either to increase or decrease governmental powers or the rights of its citizens in anyway mean that the original constitution stands dissolved and the containing line is broken and that the nation has been left with 19 new constitutions within these last 40 years?

One might well say then that the British monarchy of a thousand years, whose once absolute powers have been cut down to size, time and time again, through the ages, ever since the Magna Carta was signed in the 13th century; and, though now reduced to a constitutional monarchy, whose royal assent is still required to make law any act passed by parliament is a new creation.

But, unlike Dr. Peiris and his supportive brother-in-law Dr. Jayawickrama who subscribe to that any amendment to the constitution creates a new one and that any curtailment of some presidential power however insignificant it may be — for whose to judge its significance but the Supreme Court and certainly not by a family kangaroo court whose politically based judgments are issued at press conferences — the British mother of all Parliaments don’t think so.
Their tradition has been, upon the death of their king and monarch, to hail “The king is dead, long live the king” signifying that though the powers of the monarch has been reduced by Parliament, the monarchy continues without break.

The Sri Lankan Constitution provides the same where Article 31 (4) states that “the president in office shall continue to exercise, perform and discharge the powers, duties and functions of the office of president until the assumption of office by the person declared elected as president.”

Dr. Jayawickreme’s assertion is that the 19th Amendment has abolished the presidency. And created a new one. It implies that the Supreme Court had been taking a catnap when it came to approving the 19th Amendment and had not realised that they were approving the creation of an entirely new presidency and banishing the previous presidencies to oblivion and doing so without referring it to a public referendum. And that it enabled the nation to have a new constitution. A clean slate where everyone is a reborn Lankan with no memory of the past and who is justified saying: “I don’t know’ or I can’t remember’?

This is stated in his view that the Article in the original constitution of 1978, removed by the 18th Amendment and restored again by the 19th Amendment — ‘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’ — is an entirely new prohibition on a citizen’s right to be nominated to stand for election and to be elected. Immediately prior to the 19th Amendment, the Constitution did not impose such a disqualification. Therefore, a person who had previously been twice elected to the office of Executive President established by the repealed Article 30 was not subject to such a disqualification and did not suffer such a legal disability.”

Whilst G. L. Peiris’s wishful thinking on the issue has been confined in his ghost writings to state that 19th Amendment has no retrospective effect and that it applies only to future presidents who have served two terms from contesting again, his brother-in-law Jayawickrama has gone further to declare that the 19th Amendment has served to abolish the existing presidency – the presidency which is the core of the 1978 constitution – and that it has ushered in a new presidency and a new constitution without even a full bench of the supreme court noticing it until he and his brother-in-law Peiris did after three years of it being passed by 223 members of parliament out of 225.

Including G.L. Peiris himself who raised his hand and said ‘Aye, Aye’ when it came to enacting the 19th Amendment to the Constitution in April 2015.
But Peiris’s wishful thinking of reviving Rajapaksa’s hopes of contesting for the fourth time in his political life for the presidency and become president for the third time on the spurious basis that the 19th Amendment had no retrospective effect and his brother-in-law Jayawickreme’s fanciful imagination which he stretched to the limit that a single amendment, namely the 19th, had abolished the existing presidency and even the Constitution itself despite Supreme Court monitoring, could not go unchallenged, especially when its roots were based on politics and not on legal grounds.

It was akin to what Indika Anuruddha, MP of the Joint Opposition, said on Thursday when he called upon the Government to allow Mahinda Rajapaksa to contest again. He told a news conference that if the people wished to elect Mr. Rajapaksa as the President again, the opportunity should be given, irrespective of the number of Presidential terms.

He said it was useless to hold a presidential election by keeping the best player aside and added that it was not necessary to obtain the opinion of the courts with regard to this matter. “The people’s will and opinion should be considered with regard to this and the government parties can decide on it.
Didn’t the poor fellow know that it is not within the President’s power to override the Constitution and give pardon to the former president, in the manner the President has powers under the Constitution to pardon those on death row from swinging on the gallows?

At least the poor chap can be forgiven for his lack of legal knowledge. But can the same forgiveness be extended to professors of the legal firmament? To two doctors of law who have suddenly risen from the tombs of their legal tomes to hammer home a political controversy in the name of resurrecting the Holy Ghost?
But the legal dribble they drooled for the masses to suck and sip was not to go unchallenged. It was time for the legal big guns to fire their own legal fodder.

First off the mark was President’s Counsel and MP Jayampathy Wickramaratne, who stated last Sunday “Neither former presidents Chandrika Kumaratunga nor Mahinda Rajapaksa could contest for a third term, according to the law brought in by the 19th Amendment.” He added: “If either Chandrika Bandaranaike Kumaratunga or Mahinda Rajapakse had been elected President on January 8, 2015 and the 19th Amendment was enacted on May 15, 2015, then the disqualification would not have applied in the current term as the election had already been held.”

Closely following him was Wijayadasa Rajapakshe also a PC, MP and former Justice Minister, who stated that according to the provisions of the 19th Amendment to the Constitution, a former President is barred from contesting any Presidential election. “Rajapaksa cannot run again seeking a third term as the 19th Amendment to the Constitution does not allow him to do so. He also noted, “When a person wants to contest in a presidential election, he or she has to hand over his or her nomination along with a sworn statement which says that he or she is not a disqualified person to contest as a presidential candidate.

And warned: “If a person who has become a President twice, requests to compete as a candidate for a third term, that person will also have to give a sworn statement saying that he or she is not disqualified to contest. If such a statement be given, that would become a false statement. It will become a lie. According to the Penal Code Provision 190, a person giving a false sworn statement is subject to three years imprisonment.”

Despite these opinions, G.L. Peiris stuck to his guns and repeated his folly not once but twice. On Monday, he reiterated his stance “that in the absence of specific provision in the 19th Amendment to the Constitution enacted in early 2015 with regard to non eligibility of those who had held office for two terms, the new provision could not be applied to the past. Therefore, the two-term provision could be applied to those elected after the enactment of the 19th Amendment.

But after the big cannon had fired their legal fodder, the cutting edge of the argument was sealed this Tuesday when a UNP backbencher pointed out that the Supreme Court had already ruled on the applicability of the 19th amendment to instances before its enactment.

UNP MP Thushara Indunil raised the bone crunching point that a Supreme Court precedent already existed to confirm that the 19th Amendment did have retrospective effect, even though the amendment had not specified it. It didn’t have to. Common sense and simple interpretation implied it. He pointed out that the present president was elected by the people on January 8, 2015 to serve as the nation’s president for a term of six years.

The 19th Amendment reduced that term to five years. That was one of the sacrifices President Sirisena made to shorten his presidential life span. But sometimes, good intentions made in the best of faith and sworn upon at the start get the better of men when the end draws near and, like Marlowe’s Dr. Faustus did, appeals for an extension. Sirisena proved no exception.

He asked the Supreme Court, “Whether, in terms of Provisions of the Constitution, I, have any impediment to continue in the office of President for a period of six years from 9th January 2015.”

No problem with that. It was his presidential right and privilege in terms of Article 129(1) of the Constitution, to refer to the Supreme Court for its consideration and for an opinion on such a matter. Mahinda Rajapaksa did the same. After having repealed the 1978 Constitution’s two-term limit on his presidency with his draconian 18th Amendment in 2010 which opened the gates for him to contest and rule as president in perpetuity, he still got the jitters in November 2014 of his absolute right to contest the presidential elections in January 2015.

The Supreme Court’s opining was clear. Although Sirisena had no legal duty to reveal its opinion, unlike Rajapaksa who didn’t, he did make public the Supreme Court decision which held that, in view of the 18th Amendment the fact that the people had elected him for six years before its enactment was irrelevant.
That the 19th Amendment was now the law of the land; and that Sirisena’s own prescription of five instead of six tablets per term of office for a president must take effect. The same will apply to any argument put forward to dislodge the decision and precedent of the Supreme Court that what applied to Sirisena before the 19th Amendment was passed will also apply to a president who having served two terms as president in the past is thereafter disqualified to contest for the presidency again. It’s, more or less, a life sentence. Without parole or pardon. Unless the Constitution is so amended to allow one to do so.
In simple terms what it boils down to is this.

The 1978 Constitution stated that ‘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.’ Mahinda Rajapaksa in 2010 brought the 18th Amendment to the Constitution and removed it; the one constitutional impediment that lay in his way to go not only for a third term but, if need be, forever. Maithripala Sirisena in 2015 repealed the 18th Amendment and restored it. The contention of GL and his kith is that it does not apply to presidents in the past but only to those in the future.

Now consider this. What if there was this clause in the 1978 constitution that ‘no person who has been convicted of murder and sentenced to death by a competent court shall be qualified thereafter to be elected to the office of president.’ And what if the 18th repealed the proviso and thus made it possible for those on death row to be elected as president. And the 19th Amendment repealed the 18th Amendment and restored the disqualification cast upon convicted murders? Would they now be free to contest for the presidency and be elected to office and run the affairs of state behind prison walls or, as GL’s argument goes, will the restoration of the disqualification only apply to future murderers?
Chew on it, till the matter is brought before the Supreme Court for a final adjudication.

OBAMA: No one is above the law, not even the president of the USA ‘Why do people want to cling on to power, especially when they got enough money’ What Obama said as he faced the end of second final term The 22nd Amendment to the United States Constitution enacted in 1951 states that no person shall be elected to the office of the President more than twice. And during his second term of office as President of the United States, the then President Barrack Obama, then the world’s most powerful man, spoke of what it meant to let go of power. Ultimate power. This is what he said, facing as he did the inevitable end to his grasp of world domination: “I am in my second term. It has been an extraordinary privilege for me to serve as President of the United States. I cannot imagine a greater honour or a more interesting job. I love my work. “But under our Constitution, I cannot run again. I can’t run again. I actually think I’m a pretty good President — I think if I ran I could win. But I can’t. So there’s a lot that I’d like to do to keep America moving, but the law is the law. And no one person is above the law. Not even the President. “And I’ll be honest with you — I’m looking forward to life after being President. I won’t have such a big security detail all the time. It means I can go take a walk. I can spend time with my family. I can find other ways to serve. I can visit Africa more often. “The point is, I don’t understand why people want to stay so long. Especially when they’ve got a lot of money. “When a leader tries to change the rules in the middle of the game just to stay in office, it risks instability and strife. And this is often just a first step down a perilous path. “And sometimes you’ll hear leaders say, well, I’m the only person who can hold this nation together. If that’s true, then that leader has failed to truly build their nation. You look at Nelson Mandela — Madiba, like George Washington, forged a lasting legacy not only because of what they did in office, but because they were willing to leave office and transfer power peacefully. “Nobody should be President for life.” It’s a lesson Sri Lankans can learn from — that the younger must rise as the old doth fall.