Columns
Will Sarath’s legal bullet stop Mahinda?
View(s):As if seated by the banks of the Diyawanna Oya with a much thumbed copy of the Lankan Constitution beside him and watching over the goings on of Lanka’s supreme legislative body, former Chief Justice turned Chief Television Buddhist and now hoping to be Chief Public Litigant, Sarath Silva delivers his own judgment on Mahinda Rajapaksa’s eligibility to contest the next presidential election.
The four year long deliberations on the interpretation of the 18th Amendment to the Constitution enacted in 2010 have led His Lordship to hold, in the one bench shadow Supreme Court of his own mind, that the present incumbent is disqualified to offer himself as a candidate at the next presidential poll; and should he dare do so, he will first have to brave and slay Silva, the fire breathing dragon snorting legal hot air at the Election Commissioner’s gate.
The crux of his argument as contained in Silva’s New Law Reports, published in a newspaper last Sunday is that:
Sarath Silva
nRajapaksa was elected for the second time as the president on the 27th of January 2010.
nUnder the 1978 Constitution, by virtue of Article 31(2) which disqualifies a person who has been elected twice by the people as president, Mahinda Rajapaksa became ineligible from that date onward ‘to be elected to such office by the People’.
nThe 18th Amendment repealed Article 31(2) of the Constitution and thus today a person who is twice elected as president can be elected any number of times as the president. The disqualification which hitherto existed has been abolished.
nThe 18th Amendment to the constitution was passed by parliament on the 9th of September 2010 — seven months after President Rajapaksa had already become disqualified.
nBut the 18th Amendment does not remove any disqualification suffered by any person before it was abolished.
nThe disqualification continues. Mahinda Rajapaksa’s ‘stigma’ of a double victory stays. The repeal applies only to those elected twice after the 9th of September 2010.
nThis is because in Lankan jurisprudence, retrospective laws, Mr. Silva contends, are not recognised by courts unless the particular law states a date from which it will become retrospectively operational.
nClause 2 of the 18th Amendment which abolishes the disqualification does not state a date when it will become operative.
Well, there you have it — the final verdict from a Silva come to judgment. And already the Opposition have clutched onto Silva’s straw like drowning men cling to riverbank reeds that cruel fates mockingly throw to the doomed to beguile them with sardonic hopes of salvation.
For the UNP’s National List MP, Wijeyadasa Rajapakshe, a President’s Counsel no less, Silva has played all he wishes to hear. Ah, how sweet the strains flowing from Silva’s saccharine flute must sound to him that it moves him to embrace the verdict; and makes him gush forth the final say on the issue as if it were his own considered opinion; and blissfully gives not a tosh that the Phantom of the Opera maybe waving his invisible baton the other way.
And look, who is jumping for joy and holding press conferences to announce the good tidings that the feared favourite in the one horse race maybe nobbled by a legal knockout pill and their own lame mules may now bray for an outside chance to run in the National Derby? Not to be outdone, the JVP Propaganda Secretary, Parliamentarian Vijitha Herath has joined the ‘hallelujah’ choir and, in the manner of a gullible client, is more than willing to accept his own lawyer’s optimistic opinion of the case as the one that will be held by the judges and holds the case as being already won before the issue has even come before the court. The two opposition members both share a common desire. They both like to accept as true what they would both like to happen as fact.
Understandable though their joy is, before it becomes infectious and leads to the entire opposition rolling up the presidential election map and abandoning their elusive search to find a common David to fell the UPFA Goliath of Lankan politics, it should be borne in mind that Sarath N. Silva’s opinion is, well, Sarath N. Silva’s private opinion only and is not an edict of the Supreme Court, with its imprimatur on it.
As any lawyer worth his legal onions knows, the law on paper is quite different from the law in practice. Descending from the constitutional text book, there is a certain touch of flawlessness gracing Sarath Silva’s blinkered gaze upon the seemingly straightforward meaning of the erased words on the palimpsest. But how will it look from the lofty seat of justice in Lanka’s apex court atop Hultsdorf Hill? Therein lies the rub. And the opposition would do well to button up their glee than come a cropper, falling over Sarath Silva’s wishful line.
The line of his argument runs fine until it comes to the ‘retrospective’ part when it hits the pits. According to him, Mahinda Rajapaksa became disqualified to be elected president for a third term on the 27th of January 2010 under the then existing provisions of the Constitution. Removal of the legal bar by the 18th Amendment does not apply to Mr. Rajapaksa and he remains ‘stigmatised’ with the mark of disqualification. This, he says, is due to the fact that the 18th Amendment is not and cannot be a retrospective enactment. Thus in practical terms it applies, not to Mr. Rajapaksa, but only to those twice elected president hopefuls in the future.
In other words it will apply only to a person who not having been elected twice already before the 9th of September 2010, contests and wins the presidential election in 2016; and then goes on to win it again in 2022. The two term restriction and disqualification that existed before 9th of September 2010 will not apply to him and he will be free to seek a third term in office in the year 2028 and any number of terms thereafter without any impediment.
That is if the prospective view is taken as to the application of the 18th Amendment by the courts. But what will be the position if the judges adopt the opinion that 18th Amendment has retrospective effect.
Sarath de Silva accepts that Article 75 of the constitution empowers parliament ‘to make laws including laws which have retrospective effect’; but goes on to assert his own opinion that laws are ordinarily prospective in operation and for it to acquire the force of retrospective effect, the law must clearly state the date on which it becomes operational. Since the 18th Amendment does not state a date, he holds it cannot have retrospective effect.
But, unfortunately the constitution does not state that, in the absence of an operative date, all laws have only prospective effect.
The whole question thus falls into the hazy realm of interpretation to determine the validity of Sarath Silva’s unsolicited legal opinion which, not having been delivered from the lofty bench of the Supreme Court from which he once gave his judgments and bereft of the regal robes in which they were once majestically cloaked, is now no more than an expression of pedestrian thought made by a senior retired citizen from the pauperized chair and table of a hurriedly gathered media meeting. For the moment, until adjudicated by competent judges of the Supreme Court, it is neither stronger nor weaker, better nor worse than the views of a student at Law College. Only those who wait for a much sought miracle to debar the president from contesting again will hail it as the long awaited divine answer wrought by their fervent prayers.
For much will turn upon the interpretation any future bench of Supreme Court justices will lend to the 18th Amendment, to Article 75 of the constitution which empowers Parliament to make retrospective laws and to any other existing law.
In the exercise of interpreting the statute, they will seek to discern the intention of Parliament when it enacted the 18th Amendment: and the question they will have to ask themselves is whether it was the intention of Parliament to remove the disqualification Mahinda Rajapaksa became subject to upon winning the presidential election for the second time, seven months before the amendment was enacted? If they so decide that it was Parliament’s intention, the 18th Amendment will be held as having retrospective effect and Mahinda Rajapaksa will be cleansed of the Article 31(2) ‘stain’ and be free to contest again, irrespective of any possible objection anyone may have.
No plethora of precedents put forward by Sarath Silva, no amount of references made to legal authorities, no appeals to any judgments of foreign court, House of Lords included, as to how they interpreted the operation of retrospective legislation will have any sway over Chief Justice Mohan Peiris and his chosen judges, seated at the pinnacle of Lanka’s courts. They are not bound to follow any precedent established by any other court; and, if they so wish, they can even overrule their own previous judgments with the aid of a larger bench of judges.
More than anyone else Sarath Silva should know of the unfettered power of the Supreme Court where he once lorded as the Honourable Chief Justice. Some of his judgments were arrived at by overruling offending precedents set by lower courts; and some of his judgments still remain on the law books precisely because no court higher than the Supreme Court exist in Lanka to overturn them.
On the other hand, if, as Sarath Silva staunchly holds, the 18th Amendment is a purely prospective piece of legislation having no retrospective force, then the present president’s disqualification will remain and his success at two elections will be a permanent impediment to contest again. What effect then would Parliament have intended the repealing of Article 31(2) to have in practical terms and when?
For any meaningful effect to ensue if the repeal is of the prospective genre, two events must take place. First a person other than Mahinda Rajapaksa and Chandrika Bandaranaike must contest the 2016 presidential election and win. Secondly, he or she must also win the 2022 election. The twice elected president can then contest the 2028 election without the disqualification imposed by Article 31(2) which the 18th Amendment has now removed.
If, however, he or she fails to win the 2022 election but is elected at the 2028 presidential election, then the disqualification bar will not apply in the 2034 election, etc. Thus any future president can only avail himself of the benefit of Clause 2 of the 18th Amendment only in 2028, if at all. Was the Mother of all Laws trifled with to achieve a benefit that will ensue only 18 years or 24 years after the amendment or, perhaps, never at all? Did parliament intend the repealing of Article 31(2) as a purely academic exercise?
And then of course there is the question of public policy and the national interest which the judges, at their discretion, may well take due note of. Despite precedents to the contrary, despite references to the highest legal authorities and legal texts, despite water tight arguments and solid judgments from foreign courts, the judges, if they are so judiciously bent may well decide to base their judgment on reasons of their own choosing even as Sarath N. Silva oft did when he was the Chief Justice.
Take for instance his infamous admission published in the Daily Mirror of 16th October 2012 when, seeking kudos, he declared without the slightest blush that President Mahinda Rajapaksa would not have become the President of Sri Lanka if not for his Supreme Court ruling to release him in the Helping Hambantota case. Mahinda Rajapaksa would not have either been able to contest the 2005 Presidential election or come into power if the Supreme Court bench headed by him did not clear Mahinda Rajapaksa of allegations of misappropriation of Tsunami funds.
He said: “We did this expecting Mahinda Rajapaksa in turn would safeguard the rights of the other people but it is not happening today. There are many complaints that it was I who was responsible to bring Rajapaksa into power. I admit it since Mahinda Rajapaksa was freed to become president because of this decision by the Supreme Court. President Rajapaksa is now able to carry out wrongful acts because of the order we delivered then.”
Thus though the law may seem clear cut to Sarath Silva now and leads him to one pre set destination and to no other in the road map he has chartered all by himself, the many factors that judges of a future supreme court may take into consideration, at their sole and untrammeled discretion, when interpreting whether Clause 2 of the 18th Amendment was intended to have retrospective effect or not, give rise to the possibility that they may go down another path toward another different port. Thus it is best for the presently down and out opposition to curb the natural tendency of the forlorn of hope to place their faith and trust in the first meandering mystic who comes their way, and swears to show them the road to the Promised Land by leading them through the short cut of a garden path.
Mr. Silva also stated in an interview on August 25th that since his interpretation makes it clear that President Rajapaksa will be disqualified to contest for a third term, the present scramble by the opposition to find a common candidate is totally unnecessary. ‘A common candidate.” he says, “is necessary only if there is a common foe. Everyone is fighting against the President. If the president cannot contest, a third term, then he doesn’t have a common enemy and thus there will be no need for a common candidate. And since the repeal of Article 31(2) by the 18th Amendment has no bearing on the president’s disqualification, the president cannot call for a presidential election either until November 2016, as he has to let the remainder of his second term run its natural course.”
Sarath Silva speaks with the absolute certainty of one convinced of the infallibility of his own superior judgment and displays, without the slightest reticence his supreme arrogance which spurs him to believe he is divinely blessed with the inordinate gift of being able to read the inscrutable collective mind of a future bench of Supreme Court judges, chosen by the Chief Justice to hear and pronounce judgment in a still unfiled case which presently exists only in the broad acres of Mr. Silva’s own contemplative mind.
Yet such idiosyncratic behaviour is welcome for it brings light relief to this nation beset by a tragedy of errors. It promotes healthy public debate, provides a pleasing distraction from life’s travails and demonstrates that an iron curtain has still not descended upon Lanka’s carnival of democracy when former chief justices are still allowed to pop out from their retirement boxes, say their piece and pop back to their meditations.
The opposition parties should, however, beware, in their pathetic eagerness to believe in every iota of hope gratuitously cast unto them, not to slump into complacency by taking such wishful thinking too seriously to heart and naively believe that the president will be banned from the election ring merely because a silver haired, silver tongued, smooth as silk soothsayer says so. They must view the world in the cold light of reality and not succumb to the pulsating pull of pep up poppers as an instant fix to get over their depressed moods. Whatever the pundits may profess, there’s many a slip twixt the cup and the lip.
As for Sarath Nanda Silva, he should cast political prophesying aside and follow his old Trinity motto ‘Respice finem’ and look to the end in Dhamma’s true light.