Columns
Mahinda tests his Achilles’ heel
View(s):With President Mahinda Rajapaksa invoking the jurisdiction of the Supreme Court on Tuesday to submit an opinion as to his eligibility to contest the presidential election for a third time and the Government announcing on Wednesday that it will be issuing after the 19th of November, the proclamation to hold the next presidential election, how fares the political landscape this Sunday morn as parties gear up for the good fight?
At the favoured corner of the ring, flitting like a butterfly and prancing to sting like a bee is the Lankan President Mahinda the Invincible Rajapaksa, twice hands down winner of two consecutive heavy weight champion bouts, sparring for yet another repeat performance. On the form 
card, he is unbeatable, and the odds are heavily weighted in his favour as are the bets. With a string of second league wins in the provinces this year under his belt, the only question seems to be ‘winner by how many rounds’?
Though none expects a win with a flooring knockout punch like he delivered in the last championship four years ago – some even question whether he will have to use every punch in the book and fight it out to the end with the match being won on points or even whether it will have to be restaged – the serious money seems to be on him, at least for the moment. Who cares even if he has to go the whole nine yards, says his cheerleaders, once won, the winner takes the crown; and that’s all that matters and, like Miss World, will wear it for the rest of its tenure, which, in his case, will be for another six years.
Apart from the impressive results of the elections held this year in the Western, Southern, and Uva areas which showed over fifty percent of the populace were still with the Government party, the prestigious American billionaires’ business magazine, Forbes last week’ published an editorial predicting a sweeping win for the incumbent champion; and citing political stability as a good enough reason, promoted Lanka as a sure fire place for greater foreign investment.
Even the rigid Vatican regime has thought fit to make an exception to its own strictly observed rule of not allowing the Holy Father to be physically present in the flesh either during the build up to an national election or immediately after it lest the papacy be accused of extending a divine hand to either contestant to cast an all mighty knockout punch; and has agreed to permit His Holiness the Pope to visit Lanka during ,what will, undoubtedly, be tumultuous times to bless the people whose sad lot in purgatory, alas, will continue unabated, who ever emerges as winner.
But even a people’s professed wishes, even a soothsaying Forbes’ oracle prophecy and even a passing shower of papal blessings may come to naught if, by the greatest impish irony and a sardonic quirk of fate, the champion is condemned by the excess of his own successes and ruled out from the ring even before the fight has begun. That is if the tenth commandment proclaimed in Lanka’s Constitutional Bible’s, “Thou shall not covet thy neighbor’s right to the kingdom’s crown after wearing it twice’, is still upheld in this day and age and not given an interpretational twist. This is the Achilles’ heel of the otherwise immortal unbeatable champion and thus the need to dip again in the constitutional waters to cure the defect.
Though the Queensbury Rules applicable to election bouts were changed four years ago, nagging doubts have now surfaced whether the changes have done the trick well enough and whether the old saying ‘ nothing succeeds like success’ will this time be turned on its head and proved wrong. Whether those who are wont to hit below the belt, will be able to plunge a spanner in the works and upset the UPFA ballot cart?
But rather than gain a pyrrhic victory and risk entertaining any calumnies which will rob the sheen of triumph and debase the resplendent metal of achievement, the current champion this week on Wednesday decided to consult his referee and place the disputed matter in the hands of the independent sovereign men and women he had appointed, for an opinion on his eligibility to contest again for the third time?
Such has been the seriousness with which he has undoubtedly viewed the doubts of his eligibility to contest, that he has taken the unprecedented step of placing his future fate and career in the custody of a handful of eminent men and women entrusted with the task of impartial adjudication. The raising of doubts as to whether he can contest a third time, whether the repeal of Article 31 in the Constitution by the 18th Amendment to the Constitution has retrospective effect to remove the disqualification for a twice elected president to be elected again, has put him on his best mettle to clear the air once and for all and drown forever the bobbing buoys of irritating question marks.
That he has taken this extraordinary gamble, that he has staked all his winnings for one more term of office on one turn of judgment that may well rule him out of the contest and banish him to the political wilderness thereafter, speaks volumes of his inordinate belief in democracy and in the integrity of its hallowed institutions and in the moral rectitude of the people who dwell therein.
By placing his faith and trust in the wise and worldly sagacity of the eleven guardian judges who grace the indispensable judicial pillar to deliver divine judgment based on the high moral principles of justice and fairness grounded upon established legal principles, demonstrates not only the president’s commitment to democracy but also reassures the nation that he himself believes in the workings of its institutions and seeks its enlightening counsel to clarify his position and thus ensure he is acting to the letter of the law.
He has gone before the bar of the court like any other citizen seeking a fair judgment for his cause. Headed by the Hon. Chief Justice Mohan Peiris, PC the present Supreme Court comprises Hon. Justice Saleem Marsoof, PC, Hon. Justice K. Sripavan, Hon. Justice Chandra Ekanayake, Hon. Justice Priyasath Dep, PC ,Hon. Justice Eva Wansundera, PC, Hon.Justice Rohini Marasinghe, Hon. Justice Buwaneka Aluwihare, PC Hon. Justice Sisira J de Abrew Hon. Justice Sarath de Abrew and Hon. Justice Priyantha Jayawardena, PC.
Out of these judges, the Chief Justice will choose a bench and the judges so chosen will hold in their judicious hands the future fate not only of the President but also of all Lanka. Until Monday’s judgment day, it will indeed be heavy heads that wear the full bottomed wig. For they, the chosen seed of the court’s chief, will be called upon to discharge the onerous burden of duty that lies before them. Their judgment arrived at their sole discretion and without appeal to any other body, will determine the course of Lanka’s history.
But however just and merited one subjectively holds one’s cause to be, howsoever self evidently true and fair one considers it to be, however much one feels that commonsense can dictate no other course but the path that one has chosen and now seeks legal sanction to trek, , the outcome of any Supreme Court hearing is unpredictable. Especially because the apex court has the overriding legal right to overrule past precedents set by lower courts; and with a fuller bench in exceptional circumstances, to even overturn its prior rulings, giving it absolute power to interpret the law as it deems fit with the stamp of finality. If responsibility for the nation’s affairs stops at the Presidential table, then final answer to questions of law, is found on this supreme judicial bench
And, in that respect, the President, in soliciting an opinion from the court which, though it may not validly bind him now will still possess an over binding influence in the future if it goes against him, has displayed enormous courage and taken a massive gamble voluntarily. He has taken a risk unasked. The judgment, any judgment for that matter, can go either way. The only safety net is that if the court opinion goes against him, he still has two more years to remain as President till his second six year term expires.
Already with the president’s voluntary act, the floodgates have been opened and the Bar Association on Friday was to move the Supreme Court in respect of the President’s reference to Court seeking a ruling on his third term bid. Their objection was based on the opinion expressed by law Professor Suri Ratnapala that the 18th Amendment to the Constitution could not have been enacted without the approval of the people at a referendum if it had the effect of retrospectively extinguishing the two term limit. However their request for an oral hearing prior to filing written submissions did not receive a response, the BASL claimed.
Furthermore in another unprecedented move the Chief Justice on Thursday requested all lawyers to give their own written opinion, if they so desired, to the Supreme Court Registrar before 3 pm on Friday the 7th of November in respect of the issues raised by the President to the Supreme Court for an opinion. This request by the Chief Justice was duly sent by the Bar Association Secretary via SMS to all lawyers to tender their opinion gratis. Only 35 out of the 14,000 strong Bar Association membership responded – not surprising, for members of a profession known to lapse into silence if asked even by a close friend ‘do you think it will rain today?’ unless fees are paid beforehand for a forecast.
America which has called for a Rajapaksa regime change in Lanka will be watching the proceedings closely with interest. So will UNP leader Ranil Wickremesinghe who also called for a Rajapaksa regime change on Wednesday. For the USA led Western powers, there will be no necessity for an Arab Spring, no need to spawn revolution, no need to fuel protests, no need to create mayhem and anarchy on the streets if the president is opined by the Law Lords to be disqualified from contesting again.
For Ranil Wickremesinghe, if such an opinion is forwarded, there will be no need for him to fear the outcome of the election. It will enable him to see realised his twenty year dream of finally making it to the top; and will exorcise his many defeats to assume the seat of power by default. For the West and for Ranil, their aims and ambitions can be achieved by the simple flourish of legal quills, inked in the temple of democracy in a highly legal and civilized manner tomorrow morning.
But while America and Ranil may be forgiven for indulging in a spot of wishful thinking, the people of Lanka may not easily forgive curtailment of choice. For many Mahinda Rajapaksa is eminently qualified and is regarded as the man for all seasons, the man for all reasons, perfect in every way but for this Achilles’ heel in the constitution which may prove fatal if so interpreted.
That then is the task and challenge that await the chosen bench of the Supreme Court whose jurisdiction the President has invoked, to settle a matter that might well seal his fate or eliminate all doubts and sniggering as to his eligibility to place his name on the nomination list for the third time. No doubt the judges will approach the question with the utmost objectivity, and exercise the strictest impartiality and embed their canvassed opinion solidly on compelling legal grounds. The nation expects no less.
| A lesson from Hong Kong
SUNDAY PUNCH 2 As China still reels with the aftershocks of Hong Kong’s recent pro-democracy protest and its media attempts to lay the blame at the door of foreign powers by labeling it as ‘colour revolutions’, a term used to describe internationally funded protests, a pro-Chinese senior lawmaker in Hong Kong disputed the contention and said he did not believe foreigners were behind the uprising. Jasper Tsang, the president and speaker of the city’s de facto parliament said he did not believe foreigners were a driving force behind a month of rallies and roadblocks calling for full democracy in the semi-autonomous southern Chinese city which paralysed parts of the Asian financial hub. In an interview with Cable TV, he declared, “I can’t see it happening. Unless you treat foreign diplomats expressing concerns as an intervention by external forces. I think their concerns, raised objectively, were not intended to influence, dominate or instigate any side.” Perhaps, comrade Wimal Weerawansa, who sees international conspiracies behind every cough and sneeze expelled by any Lankan, will not say ‘no’ to a free flying visit to the Land of Suzy Wong to learn firsthand that the spirit of freedom in a suppressed people does not need the whiff of foreign money to spark and burn, that it does not require the commission of lucre to ignite, flare and fly free. And that the value of human rights is only known to those who languish under the jackboot of tyranny. Not to those who wear it. |