Letters
View(s):A sight that warmed my heart
Earlier this month, Britto Motha, well-known social worker, celebrated his 90th birthday with a Thanksgiving Mass in his church. Well before the service started, we were happily surprised to see Britto escort a Buddhist monk up the aisle to the front pew. A white cloth was laid on it and the monk sat down and stayed through the whole mass, evidently quite at ease.
Later, I asked Britto about the monk. He told me that he was the Ven. Ahangama Ananda Thera, Chief Incumbent of the Sri Vijayaramaya Temple at Fredrica Road, Wellawatte, and that they had been friends for more than 40 years, having lived close to each other. “I always invite the Thera to our church feasts,” Britto said, “and when I mentioned the Mass for my 90th birthday, he said he’d gladly attend it.”
I feel that the sight of a highly respected Buddhist monk seated in the Roman Catholic church of St. Lawrence was sufficiently noteworthy and heart-warming to warrant special mention; hence this letter.
Anne Abayasekara
Colombo 6
Starve the dogs? That’s inhumane
I read an article by Dr. Ananda Jayasinghe on rabies and agree with him that Rabies in Sri Lanka could be fully preventable. I agree with all the statistics he has given.
The Government was killing the stray dogs from colonial times to eradicate rabies in Sri Lanka without success. Now the Health Department has adopted the humane system of sterilising and immunising stray dogs, started by us in Kandy.
I disagree with Dr. Jayasinghe’s last statement that stray dogs should not be fed and left to die through starvation.
As a Buddhist and animal lover I would say, feed them till they die. Once they are sterilised they will not breed again.
We have no permanent homes to keep them. We only conduct clinics and have transit homes and after sterilisation and immunization we send them back to the roads. It is cruel to starve them to death.
Dr. C. Godamunna
President SOFA
(Save our Friends Association)
Yal Devi: The positives far outnumber the negatives
With reference to the article “On the Yal Devi to Yalpanam” published in the Sunday Times of October 19, as a civic conscious citizen and a retired General from a disciplined force I believe I will be committing an act of omission if I do not highlight the facts from the other side of the coin to those mentioned in the article.
The Jaffna line became history 24 years ago. Its disruption was a hindrance to the people of Jaffna especially to those who worked in Colombo, and the people who had to visit Jaffna for their domestic and official needs. With the resurrection of the Railway line from Colombo to Jaffna and more precisely from Mount Lavinia to Jaffna, tailor-made to suit commuters who are domiciled between Fort and Mount Lavinia the need of the hour is to satisfy all end users.
The article had only two positive thoughts, one the train starting on time and the other the ride being smooth from the north of Omanthai to Pallai.
The article stated:
The special train made its journey only within the peninsula from Pallai to Jaffna implying that the ceremony should have started from Colombo and the President and the officials should have spent 6 to 7 hours on a train journey stopping all other work.
The article failed to realize that the resuming of the Yal Devi after a lapse of 24 years is definitely not like a trishaw ride from Wellawatte to Bambalapitiya and as such so many minor details have to be worked out before the D day.
Change in departure time: Forgetting the fact that Yal Devi is not the only train on our tracks. So the train times have to be decided relative to the availability of tracks and the time schedule of other trains. This is not an easy task particularly taking into consideration the Railway Department is just recovering from a strike a few weeks earlier.
Seat selection not being given: The effect of the baking sun is not a continuous feature throughout all the trips to and from Jaffna. Fixing blinds is such a trivial thing in comparison to laying the railway track and getting the train back after 24 years.
The restaurant car was not operational till the train reached Anuradhapura: Whilst the travel time from Colombo to Anuradhapura would have been close to three hours even in an international flight people have to wait almost two to three hours from the time of boarding till they get their first meal on board.
The Yal Devi train started on the 13th and merely six days after the maiden trip, the railways have made Rs 40 lakhs as profits and more than 6000 passengers had made use of this long felt need after 24 years and more importantly we learn that the train is filled to capacity by the time it reaches Colombo Fort.
The output is the provision of a facility and what the society makes out of it is the outcome. This is not only the de facto but also the de Jure outcome our society has made from the output of the resuming of this life line joining north to south.
-Major General (Dr) Tilak Jayaweera USP ( rtd )
Is the president entitled to run for a third term?
The question whether President Mahinda Rajapaksa is entitled in law to contest a third time is much debated currently. Those who do not wish to have the incumbent President any longer argue that the repeal of the disqualification stipulated in section 31 (2) and section 92(c) is not valid to remove the disqualification made on the incumbent President as the repeal was not made retrospectively.
The argument is as the retrospective effect is not expressed specifically in the 18th Amendment and as the President took his oath under the Constitution which contained the disqualification, Section 6(3) of the interpretation ordinance applies and the previous disqualification continues forever.
The argument is based on the presumption that the term “Qualified” appearing in 31 (2) is an offence or right or liberty, or penalty acquired or incurred referred to as in section 6(3) of the Interpretation Ordinance. The proponents also presume the “disqualification” stipulated has occurred or incurred permanently on the day the incumbent President was elected a second time.
The most recent opinion expressed by Prof. Suri Ratnapala too supports the proposition that the incumbent President is not saved from the disqualification by repeal of Section 31(2) as the repeal is not expressly made by Parliament to be retrospective and the 2010 Presidential election was held on the condition of the 31(2) provision and the 18th Amendment could not have been enacted without the approval at a referendum and the Supreme Court did not consider this aspect of the matter when it approved the Bill as the matter was not argued before them and the section 6(3) (b) of the Interpretation Ordinance No. 21 of 1901 applies.
Section 31(2) which was repealed by Parliament on September 8, 2010 reads as follows:
“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 consensus that the above disqualification was removed by Parliament by a two-thirds majority constitutionally. The debate is whether the repeal is only prospective. And therefore is not removing the disqualification retrospectively as the disqualification had a permanent effect prior to repeal in terms of section 6(3)(b) of the Interpretation Ordinance.
Section 6(3)(b) of the Interpretation Ordinance is as follows;
“Whenever any written law repeals either in whole or in 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 any offence committed any right, liberty or penalty acquired or incurred under the repealed written law.”
What was repealed was a provision of the Supreme Law by a two-thirds majority of Parliament, which could admittedly lawfully affect such a repeal retrospectively or prospectively. The question has been raised by some experts whether any written law referred to in section 6(3)(b) above could include the Constitution which is the Supreme Law. In other words is the Constitution just any written law?
Leaving that debatable argument aside, let us ask the next simple question whether by any stretch of argument or logic or commonsense or reason the word “qualification” could fall under the category referred to in section 6(3)(b). Namely is it “any offence committed, any right, liberty or penalty acquired or incurred” as it stated in the relevant section. Qualification or disqualification is not a term which can be identified or if identical as an offence right, liberty or penalty acquired or incurred.
The incumbent President did not by previous 31(2) provision incur or acquire a right, liberty or a penalty. (President could not have committed the offence of being the supreme choice of the people twice). The President became illegible or unsuited for office of presidency after being elected twice. But that does not make the President a person who had been convicted of an offence or committed a crime or incurred a penalty or was punished for the offence of being elected to the highest office in Sri Lanka twice.
And lastly disqualification set out in 31 (2) and 92 (c) is not a right or liberty acquired by him. Thus being in a state of disqualification or not being qualified for a thing was not a matter referred to in section 6(3)(b) and the section cannot in commonsense apply in the issue under debate. If so the Amendment need not be made retrospectively. The repeal thereof is sufficient.
In that event the opinion of Prof. Suri Ratnapala and others cannot be valid in law.
Another argument currently popular is that Section 31(2) before repeal has affectively disqualified the incumbent President from being elected “forever” and therefore a repeal cannot affect the reversal of the disqualification as at the very moment he took oaths for the second time as elected President he automatically became disqualified thereafter (forever).
This argument is based on the assumption the word “thereafter” as in Section 31 (2) refers to “time” and not in relation to the “state of being elected twice”. The plain reading of the Section seem to connect the word thereafter to the words twice elected to the office of President by the People rather than to the concept of time. Had the concept of time been the purpose of the draughtsman he would have chosen the word hereafter. The word hereafter in the context of Section 31(2) replacing the world thereafter would certainly provide a sound argument that the incumbent President is disqualified forever from seeking the office in spite of any repeal unless the repealing law expressly permits the election of the incumbent President.
In January 2010 the incumbent President was elected a second time. The Government seemed likely to continue its overwhelming popularity at the time and there was speculation among interested parties as to who would be the next candidate (and the President) from the popular Rajapaksa government, apparently causing unnecessary conflict as to the successor in government ranks. As if to put an end to all that and to the relief of those segments who prefer a rift free government it was made public that amendment to the law permitting the election of the incumbent hero a third time (or more) would soon be made. And accordingly the repeal of Section 31(2) was made. There were many who highly criticised the move.
The 161 MPs including some opposition members who voted for the repeal clearly did so intending to benefit the incumbent President and not any future President whom Parliament wished to keep in office for more than two occasions (or to invite Chandrika Kumaratunga to be a future President for that matter) as opponents by argument suggest. The intention of Parliament was specific. Parliament at the time the repeal was made into law desired and intended categorically for the incumbent President Rajapaksa to contest the Presidency again sans the law which disqualified him for the time being owing to the presence of 31(2) in the Constitution.
Where there is ambiguity in law and debate ensues as to what the law means the intention of Parliament in passing such law becomes a key factor in ascertaining the law accurately. What did Parliament intend? In this instance it appears that Parliament indeed intended the repeal to be retrospective in effect.
The most relevant matter is that none of the experts who have expressed the opinion that the repealed law has not removed the two term barrier has examined the above important aspect, namely the intent of Parliament. That in amending the Constitution, Parliament in fact did so purposely to enable the incumbent President to be elected again was not considered in their various arguments.
Section 31(2) was not a sacrosanct condition of the 2010 Presidential election. All articles of the Constitution including the article to amend or repeal were conditions attached to the election. The Supreme Court has already determined the constitutional validity of the 18th Amendment. And article 83(a)(b) exhaustively stipulates what amendment or repeal requires a referendum. There is no need for experts to elucidate such matters.
The disqualification was not a thing of the past. Happened and over. Suffered and over. The disqualification was a status which was alive continuously upon Article 31(2) and 92(c). Once the Article 31(2) and 92 (c) is repealed prospectively or otherwise the disqualification disappears.
Repeal of a law has serious consequences. A repeal ordinarily brings about complete obliteration of the provision as if it has never existed. Parliament in fact intended Articles 31(2) and 92 (c) to be repealed retrospectively and thereby not to disqualify the incumbent President from re-electing himself. Even if the Amendment is not retrospective in operation the section 6(3)(b) has no reference in it to entrench or include the term disqualification as such. Whatever the moral or the ethic of the repeal and the manner a two thirds majority of Parliament was obtained, there is no doubt the repeal is effective law removing the disqualification. Presently the better and only path of preventing the re-election of the incumbent President seems to be by beating him at the presidential election.
Amaradasa Kodikara Colombo 3