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Why Sarath N. Silva is wrong



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By Chinthaka Mendis


Attorney at Law


Several interesting legal issues have been raised in relation to the eligibility of the incumbent president to contest the next presidential election by former Chief Justice Sarath N. Silva PC and subsequently by Wijeyadasa Rajapakshe PC, Jayampathy Wickramaratne PC and many others in recent weeks.


Justice Sarath N Silva’s argument is, that despite the 18th amendment to the Constitution, President Rajapaksa has become constitutionally disqualified to seek a third term. Prior to the 18th Amendment, the relevant sections of the constitution read as follows.


Article 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.


Article 31(3)A(a)(i)


Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may at any time after the expiration of four years from the commencement of his first term of office by Proclamation declare his intention of appealing to the People for a mandate to hold office by election for a further term.


At the same time, Article 92 stated that every person who was qualified to be an elector should be qualified to be elected to the office of President unless he was subject to any of the given disqualifications, the third disqualification (c) being, ‘If he has been twice elected to the office of President by the People’.


The 18th Amendment has amended the above provisions by clause 2 which declares "The Constitution of the Democratic Socialist Republic of Sri Lanka is hereby amended in Article 31 thereof, as follows:—by the repeal of paragraph (2) of that Article 31 ; clause 15 of 18th Amendment repeals paragraph (c) of Article 92 above.


Thus, in terms of the constitutional provisions which were in force prior to the 18th Amendment, a person who had been elected President could seek the mandate of the People to hold office for a second term but was barred from contesting for the office of President for a third time. However, with the enactment of the 18th Amendment to the Constitution, the above legal position has been conclusively repealed by following the prescribed legislative process for repealing provisions of the Constitution thus empowering the Incumbent President as well as any person elected President in the future to contest for the office of President *sans* any limitations as to the number of times he/she has already held the office of President.


The premise upon which former Chief Justice Sarath N. Silva has taken up the position that the incumbent President is ineligible to contest the next Presidential election is that although the 18th Amendment has repealed in whole the former Sub-Article 31(2) and thereby removed the limitation of two terms which had been imposed under the said provision, the said repeal does not apply to the incumbent President by virtue of the fact that the law that was in operation at the time he was elected President for the second time was Article 31 prior to being amended by the 18th Amendment to the Constitution. In this respect, the former CJ refers to Section 6 of the Interpretation Ordinance No.21 of 1901 which states as follows:


"Whenever any written law repeals either in whole or part a former written law, such repeal shall not in the absence of any express provision to that effect affect or be deemed to have affected


1. The past operation of or anything duly done or suffered under the repealed written law


2. Any offence committed, any right, liberty or penalty acquired or incurred under the repealed written law


3. Any action, proceeding or thing pending or incompleted when the repealing written law comes into operation, but every such action, proceeding or thing may be carried on and completed as….


As opined by Justice Silva, yes it is a fundamental presumption of English law that no statute is construed to have a retrospective operation unless that construction appears clearly in the terms of the Act or arises by necessary and distinct operation. This is a presumption which is altogether rebuttable on the grounds of facts and circumstances leading to the amendment. The normal practice is to provide a non obstinate clause to avoid the operation and effect of all contrary provisions. However, when the intention of the legislature is manifest from the provisions of the repealing law, the necessity for such a provision does not arise.


We are dealing here with an article of the Constitution relating to the election of the President. It strikes to me as artificial to rely on the Interpretation Ordinance of 1901 in interpreting the constitutional provisions pertaining to the Election of the President of the Country. The logic of former Chief Justice, Sarath N. Silva’s argument that without express provision, Parliament did not intend to allow the incumbent President to contest again with an amendment just before his assumption of the office of President for the second term. In my view, conclusion is clearly farfetched. In fact, this is an approach derived far from the fundamental purpose of interpretation namely, to seek to give effect to the intention of the legislation. In fact, Parliament hardly has intended that there could be an application defeating the purpose of the legislation. An orderly, logical, fair transition to the qualification should be achieved by reading it together with Article 92. Article 92 is in its present form perfectly capable of including any person whether he was a twice elected President or not, and in my opinion, for the reasons given, it must have been used by Parliament in that sense rather than in a more limited restricted sense. Hence, Article 92(c) is conclusively repealed and abrogated and has no effect to the present and, the repealed Section 31(2) does not prevent incumbent President contesting for the third time. In fact, it is important to note that Article 92 is broader in effect than the corresponding provision in the repealed Article 31(2) which basically deals with the procedure, as it expressly refers to the qualifications to run for the office of President.


In my view, the principal reason as to why the contention of the former Chief Justice fails is the fact that despite being applicable to general legislation subordinate to the Constitution, Section 6 of the Interpretation Ordinance which contains the side note ‘Effect of repeal or expiration of written law’ does not apply to the interpretation of constitutional provisions. This is owing to the reason that the interpretation provided to the term ‘written law’ by Section 2 (kk) (interpretation clause) of the Interpretation Ordinance has specifically excluded the Constitution from its purview in the following manner: "written law shall mean and include all Ordinances, Laws and Acts of the Legislature of Ceylon or Sri Lanka and all Orders, Proclamations, Rules, By-laws, regulations, Warrants and Processes of every kind made or issued by anybody or person having authority under any statutory or other enactment to make or issue the same in and for Ceylon or Sri Lanka or any part thereof, The minutes on pensions and the Ceylon (Parliamentary) Elections Order in Council 1946".


Instead, the Constitution has been captured in the interpretation provided to the term ‘Enactment’ which states as follows: "Enactment shall mean any ordinance, law or act enacted by the legislature of Ceylon or Sri Lanka as the case may be, and shall include


i. The Constitution of the Democratic, Socialist Republic of Sri Lanka 1978;


ii. Any enactment having the force of law in Sri Lanka and promulgated in the form of a proclamation or regulation prior to the first day of January 1834.


It is important to note that as discussed above, the Interpretation Ordinance in its interpretations clause contains two classifications of law, namely ‘Enactments’ and ‘written law’, and certain provisions of the Ordinance apply to only one of the above two types of laws whereas certain other provisions clearly specify that they apply to both enactments and written laws. For example, Section 4 which deals with the exercise of powers and duties states as follows:


Continued tomorrow


 
 
 
 
 
 
 
 
 
 
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