While new legal interpretations surfacing to indicate former President Mahinda Rajapaksa can contest presidential elections again despite the 19th Amendment being in force, experts and officials at the independent election commission insist the law is crystal clear on the point that persons twice elected to the office of President by the people are disqualified from being elected again. EC officials also said that criteria for disqualification of presidential nominees were listed in the constitution and not in the Presidential Elections Act
The parliamentary debate on the Delimitation Report and the corresponding fate of the provincial council elections was overshadowed by a more intense debate in political circles on whether former President Mahinda Rajapaksa could contest a future presidential election. The debate was heated up last week with the SLPP leader Prof.G.L.Peiris’s claims of plans to move court to interpret the law brought in by the 19th amendment to the Constitution.
The Election Commission however, seemed less excited and shot down speculation saying the whole drama was unwarranted.
A senior polls officer who wished to remain anonymous said, the big hullabaloo about the provisions in Article 31 of the 19th Amendment which says, “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,” was pointless as the law is quite unambiguous.
The Sunday Observer spoke to a number of experts on the subject, to get a clearer idea about what the law dictated.
The SLPP last week argued that since the law under the constitution had no retrospective effect, the 19-A would apply to the future, to a new office of President hence they have been advised that President Rajapaksa could run for Presidency again. The SLPP is expected to seek an interpretation from the Supreme Court on the new law through a proxy or some other means by September.
Legal Director, Election Commission Attorney-at-law Nimal Punchihewa said during nominations of the Presidential election, the Election Commission can only either accept or reject the nomination papers of a candidate. There was no precedence to refer the matter to a Court for an interpretation of the law at that point, he said.
“An interpretation can be sought from the Attorney General or the Supreme Court before or after nominations but not during nominations. It can be done by the President or any citizen in a fundamental rights application to the Supreme Court,” he said.
An ordinary citizen can also move the district court, which in turn will refer it to the SC to get an interpretation but that would be quite a cumbersome process given the heavy workload of the DCs.
Punchihewa said if an interpretation is sought while during an election time, it might unnecessarily delay the polls and affect the franchise rights of the people, “Therefore if there are concerns, the best option is to clarify the law before calling for a Presidential election,” he opined.
Asked if anyone can go to courts against the decision of the Elections Commission over a rejection or an acceptance of a nomination, the Legal Secretary responded in the affirmative. He said there were provisions for an individual to file a writ mandamus and seek a stay order if they want to challenge the ECs decision.
“This was the case with the Elpitiya Pradeshiya Sabha election in February 2018. The election to the Elpitiya PS was suspended until a ruling was given by the Supreme Court,” he said.
The Democratic United National Front (DUNF) filed a writ application in the Supreme Court against the Election Commission Chairman and two others for rejecting their nomination paper for Elpitiya PS by the Galle district returning officer, on the grounds that it was handed over by an unauthorised person.
The Local Authorities Elections (amendment) Act, like all other election acts, spells out the individuals who are authorised to hand over nominations, one of such would be the Secretary of a political party.
Punchihewa said the Presidential Elections Act provides for holding the Presidential election. It contains laws on how an election is legally held, how nominations are accepted and rules on ballot papers.
But the qualifications and disqualifications for candidates are explained in the Constitution.
“Hence, there was no need to amend the Presidential Elections Act after the 19th amendment to the constitution was passed,” he clarified. But a change was made to the Act after the 19A, to say that the term of the President had been reduced from six years to five years.
Election Commission Member Prof. Ratnajeevan Hoole, referring to the argument that the past presidents can contest a future presidential election, said that since the constitution did not provide for retroactive effect said, there was no question of backward application of the law here.
“The ongoing discussion is about whether a person who has been President for two terms may contest again. There is nothing retroactive about it.
It is a forward application of the law,” he stressed adding that no one who has served two terms is eligible to be a candidate in the future. Prof. Hoole said retroactive is to apply the law to the past. Etymologically, retro - and active are the roots.
To apply the law retroactively would be to say that if there had been a three term president, his third term was invalid and all he did as president was invalid. He said that there was no argument that the law will apply only to the future in all law-abiding societies.
Meanwhile, a constitutional expert with knowledge of the 19th Amendment drafting process, told Sunday Observer that the question of the two term limit and its application to former presidents and the transitional provisions that determined the term of office of the incumbent were iron clad and repeatedly checked and double-checked by drafting experts before the amendment was presented to Parliament.
“Lawyers are not necessarily drafters, so the 19th Amendment had to be very carefully drafted by experts in legal draftsmanship who understood phrasing nuance and the need for clarity and unambiguity.
Sunday Observer learns that two retired legal draftsmen prepared the framework for the 19th amendment draft, before it was sent to the Legal Draftsman’s Department.
The expert told the that the argument being put forward by Sunday Observer Prof. G.L. Peiris and other legal experts that a new presidency was created by the 19A was seriously flawed, because the 19th Amendment transitional provisions itself alluded to the Office being one and the same.
“The persons holding office as President and Prime Minister on the day preceding April 22, 2015, shall continue to hold such office after such date subject to amendments introduced by the Act – it does not say ‘new office’,” the expert explained.
“If it was a new office, President Sirisena would have been compelled to take oaths again once the 19A was enacted,” the expert added.
The expert went on to elaborate how the Supreme Court had rejected sections of the 19A as it was originally presented – with regard to the President being unable to remove ministers – claiming that it violated the President’s powers under the constitution. The 19A did not tamper with Article 3 and 4 of the constitution, which deals with the people’s sovereignty and executive power of the people in the office of the President.
“To create a new presidency, these Articles would have to be altered – and if that was done, the Supreme Court would have demanded a referendum by the people before it could be enacted,” the expert explained.
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Repealing Article 30 abolished office of the president - Dr. Nihal Jayawickrema
By Anurangi Singh
Eminent jurist claims repealing and replacing Article 30 which sets up the office of the president, through the 19th Amendement, constituted a ‘break in continuity’ of the office
Jurist, constitutional expert and former Secretary to the Ministry of Justice, Dr. Nihal Jayawickrema made waves last week with his analysis that the 19th Amendment did not preclude persons who had held presidential office for two terms from contesting again – an argument latched on to by followers of former President Mahinda Rajapaksa.
In an interview with the Sunday Observer, Dr. Jayawickrema doubled down on his published analysis, saying that the decision of the drafters to repeal and replace Article 30 of the constitution which sets up the office of the President had constituted “a break in the continuity of the office of the President.”
“If Parliament intended merely to change the term of office, all it had to do was to substitute the words ‘six years’ for the words ‘five years’. It was not necessary to repeal Article 30 and substitute a new Article in its place,” Dr. Jayawickrema argued. He added that the effect of repealing was to abolish the office of President, even though it was necessary to replace it immediately and this had been done in almost identical terms.
Dr. Jayawickrema countered that it was not merely Article 30 that was repealed and replaced, but also Article 33 which significantly altered the duties, powers and functions of the President; Chapter VIII which transferred almost all the powers of the President relating to the Cabinet of Ministers to the Prime Minister; and a host of other Articles which restricted significantly the President’s powers of appointment, dissolution of Parliament, and the immunity that was attached to the previous office.
“Therefore, the reason why the normal form of drafting was not followed was because a new essentially non-executive, primarily symbolic and ceremonial office was being created to replace the previous office of Executive President,” the jurist argued.
Having said that, Dr. Jayawickrema acknowledges that there was no doubt that the intention of Parliament when it enacted 19A was to restore the two-term limit that had been abolished by the 18th Amendment. “But the intention had to be expressed in appropriate language in the law. That was not done,” he claimed.
The Government had options, the Jurist said, it could seriously consider supporting the 20th Amendment to abolish the presidency brought by the JVP. “That will resolve all these issues”.
He said a voter could seek clarification if a twice elected president could hold office again, by seeking an appropriate declaration in a District Court, which could then refer the constitutional issue to the Supreme Court which is required by Article 125 to hear and determine the constitutional question within two months.
Prof. Peiris who is the Chairman of the SLPP that wants to field former President Rajapaksa as the 2019 presidential candidate, has already indicated the party may follow such a course.
Dr. Jayawickrema, in spite of his arguments, insists that he does not believe any elected head of state should be permitted more than two terms. “That is the norm in every democratic country,” he said adding, “Of course, there are exceptions, especially on the African continent and in Latin America. But those are autocratic states.”