"Mahinda even had murder charges"

When the President sought the opinion of the Supreme Court regarding his candidature in the Presidential election for a third time, the decision was given in favor of him. So what is going to be the fate of your legal argument now?

We brought in that argument based on two issues. The first one is the disqualification. It means that disqualification of already being elected two times. Under article 32 of the constitution it is a serious disqualification. Although attempts have been made to repeal the above section through the 18th amendment, it is only going to be effective for the future, not the past. The second issue is that even after being elected for a second term, then President took oaths under a particular constitution. And it was under the same constitution the date of his wearing in was decided. Thus the President did not swear in his office not on the same day he was elected. He took oaths on the 19th November.

But he was elected in January under the above mentioned constitutional provision, which has clearly stated that a president who has sworn in the office must serve at least 6 years from the day he took oaths.

According to my current belief, I think the very reason why the Supreme Court did not hold an open trial regarding the matter since there is no legal basis that could counter these two arguments. That is why they considered the matter in secret and laid down their opinion. If a case was filed, then they are left with no answer to give. Otherwise they could have easily allowed a trial. Secondly, since this is a matter of great public importance, they could have allowed everyone to submit facts. Both these methods were not followed since there was no way they could establish their ‘opinion’ by following such procedures. So now we say that if an election is held under this disqualified nature, it is against the law. That is our first basis.

At the moment all the parties in the Opposition have rallied around this cause. Mr. Ranil Wickramasinghe is with us. The JVP is clearly with us. Even the JHU has rendered its support through one of their affiliated organizations. Ven. Sobhitha thero has become a fore-runner in this campaign.

The main question that we raise here is why Mahinda Rajapaksa is holding this election now. It has not yet been understood by the Sri Lankan general public. He has two more years to stay in power. He holds a 2/3 majority in the parliament for another one and a half years. But the problem he has faced now is the unfavorable economic conditions that are currently being created, which is not going to be good for the people very soon. So before losing his popularity among the people, he is hoping to grab the power while he can and retain it for another 8 years.

These decisions are taken only for the sake of his own as welfare, as well as his henchmen’s and not for the betterment of the country. We hope that Mahinda Rajapaksa would not win this election. But if he wins, he is going to extend the current parliament’s term of office by another 6 years through a referendum. He has already given this promise to his MPs. Under these circumstances, the parliament’s current term could be extended up until 2022. This clearly shows the depth the democracy of this country has sunken in to. So apart from raising the argument “Mahinda can’t three times”, we should also ask “Why is he doing this”. It is the primary duty of all of us to raise the awareness of the public regarding these matters.

He has the right to declare a presidential election even today (19) for the four year time period of his second term of office is completed today. After that the election commissioner springs on to action under the electoral law and announces the dates for nominations. Afterwards the time schedule of the election is decided.

How is the executive power centralized in other countries in the world that possess similar constitutions?

President Jayawardhana created this constitution by taking both the American and French constitutions as examples. From the beginning there was no problem with the constitution about a third term. Since 1791, Presidents who were elected under similar constitutions have never exceeded two terms in office. But President Roosevelt in USA went against this tradition and got himself elected for a third term. He even came for a fourth term. But after one year since his fourth election, he passed away. It proves that even the nature is taking action to limit this misuse of power.

After that the US Congress brought in the Article 22 and prohibited Presidents from holing office for more than two times. The reason behind this was the tyrannical rule which was built through such elections. That’s why they could not get rid of Roosevelt.

The executive president has an immense power. It is the same in our country. Therefore a person who possesses such a power cannot be defeated easily. Everything including the military, media and the government mechanism is under his control. But with this limitation the creation of a tyrannical rule is prevented. The same problem has now occurred in several African countries as well.

President Jayawardhana brought this constitution with this two consecutive terms maximum limitation. But there is a loophole where a person can compete again after skipping a term. But in the 78’ constitution President Jayawardhana clearly mentioned imposed the rule that a person, who is elected for the Presidency a second time, becomes disqualified to hold office for another time, from the day of his second election. This proves that even President Jayawardhana was aware of the real danger behind this system if it is misused.

When this constitution was first tabled at the parliament, it was severely criticized by Mr. N.M. Perera. What is your opinion on that?

Mr. N.M Perera, Mrs. Sirimavo Bandaranaike both told that this is nothing but a tyrannical ruling system. Those predictions are not wrong. But up until now we survived such a doom with the help of this two term limitation. It is a very important constitutional barrier. But Mahinda Rajapaksa did a very shrewd thing. He hit the iron when it was hot. For this he was assisted by Mohan Peiris, who was the then Attorney General. So we pointed out that even though the limitation was removed, it is not yet complete. The creator of this process was Mr. Mohan Peiris. So now the President has told the creator to fix the errors in his creation.

At that time the President shrewdly brings the 18th amendment. It is a hazardous thing. If it had gone according to the law, the 18th amendment requires a referendum. But Ms. Shirani Bandaranaike who was quite close to the President at that time approved the amendment. There it was Mr. Mohan Peiris who submitted facts to the court on behalf of the government in the capacity of Attorney General. SO the Supreme Court approval was granted. Now the president has removed Shirani and has put Mohan to that position. It shows how the President’s will has been done.

Does this show the conflict between Rajapaksa Regime’s views with the constitution?
That is 100% correct. This constitutional concept derived from the French philosopher Montesquieu. He said that there are three powers in the state, namely the legislature, the executive and the judiciary. Under a monarchical system such a division did not exist. So he said that such a division is compulsory and that each institution should be kept under the check and balance by the others.

When certain limitations are made by the constitution, the other two institutions too are keeping the executive in check. These limitations are a must. If these limitations are done in good faith, then it is useful for the betterment of both the public welfare as well as the rule of law. What J.R. did was increasing the power of the executive. So those who followed him started to add more amendments to the constitution in order to collect more power. The real reason behind the insurgency in the 80’s as well as the war in the north is this undue concentration of power in the executive. But in 2001 a balance of power was achieved to a certain extent through the 17th amendment. Even Mahinda Rajapaksa voted in favor of this at the parliament. But the same Mahinda Rajapaksa destroyed this balance of power by bring in the 18th amendment.

Though the 18th amendment does not have a retrospective effect the President still has the capacity to obtain the ability to contest for a third time through another amendment. What is your opinion on that?

No. The president is not going for another amendment at this time. It is clear. It is because of the difficult situation he has now faced in the parliament. The final decision of the parliament depends on the 2/3 majority. If he is going to amend the constitution again, it would be after the Presidential election and the referendum. We are sure about that.

And the other thing is that a Bill must be put in the gazette. But the 18th amendment did not follow this procedure. It was tabled at the parliament as an emergency bill. Such is bill is directly forwarded to the Supreme Court from the cabinet. The Supreme Court has three days to decide on its constitutionality. Then it comes to the parliament. Many MPs had even seen the bill in that very morning. This was brought in unethically by creating a fake emergency. Mahinda Rajapaksa is very skilled in this. He did the same with the Supreme Court opinion as well.

Look at the basis of your question. First Mr. Sarath Fonseka contested as the common candidate. But he was imprisoned. When it is done to a person of such caliber, no one else dare to raise any challenge. By putting the War hero in jail, the regime brought in a terrible reign of terror. Now they want to put me in jail. But still they have not been able to succeed in it. So they decided to influence the Supreme Court and to obtain its opinion. But day by day he is becoming powerless. And it has now turned in to a land slide.

What should the Opposition do regarding the common candidate at this time?
Under these circumstances the Opposition has so far done a great deal of work. In one hand the Opposition gave a big support for our legal arguments. It was I who drafted the constitutional amendment brought forward by Athuraliyea Rathana thero. It is heard that Mahinda Rajapaksa had promised to implement all the proposals after the election. But he did not expect it to be a legal bill. So Rathana thero has told him to implement it before the election since this is a legal bill.

Now the UNP is the main opposition. They are working in line with us. But so far they have failed to make a major contribution to this process. But the entire UNP leadership was present at the rally held on the 12th. But according to my view, they could have done more. But since its inside crisis they have not been able to come out well. Ven. Maduluwawe Sobhitha thero is rendering his support from one side. So the Opposition has done some work.

President Rajapaksa never expected such a thing to happen. We were waiting to put plan in to action with ease in November. But since we raised the issue, he took the first step. In a way he was caught up with our trap. Nowadays no one seems to like to see his face. These days we all like to see the face of the Santa Clause. But his portrait hangs in every corner.
So I said that the Supreme Court opinion must be sought. He even bought that bait. And by doing that he has not made a huge mess. It is his erosion we see now, not the opposition’s.

You said that you pioneered in the Rathana thero’s constitutional amendments. Does this means that you are in favor of the idea that the executive system should continue even under devolution of power?

It’s a good question. We have to operate under the current constitutional frame work. The current constitution has laid down the necessary amendments that require a referendum. The basic provision is that the executive power of the president must be executed by a president elected by the people. It is also mentioned that the national security is also included in it. So if we remove it we have to go for a referendum.

We have been compelled to achieve the 19th amendment by saving that corner. That is why there is room for a president elected by the people is seen in the 19th amendment. But he is only going to be the head of the executive. The prime minister is going to become the leader of the government. So the president is left with only a supervisory power. He can appoint the PM and the Cabinet. He can supervise their actions but he cannot remove them. He cannot dissolve the parliament. If he does so it ceases his period of office too. So we have imposed such limitation in order to evade a referendum.

If a referendum was possible Mahinda Rajapaksa would undoubtedly agree to this. That is why we created it this way. If the PM is given adequate power it creates a balance. It also ensures better protection for the rights of the minorities. So we cannot completely abolish the executive presidency.

Anyway there should be a president in a republic. What we have done here is limiting his powers. This supervisory power was not seen in the 72’ constitution. At that time even the President had to salute the PM. So we have given him adequate power to retain his supervisory nature.

Can you be sure that this is an unbreakable balance of power even in the future?
Yes. That is how it has been balanced. No matter who comes to power in the future it cannot be changed. Here no one is more superior to the rest. Ministers have clear responsibilities. An independent Police and State service commission is created. The 17th amendment is implemented. This 19th amendment was drafted by seeking opinions of many intellectuals.

Are there any other instances where Mahinda Rajapaka had been acquitted from the court even before the “Helping Hambantota” case?

Yes. There are two such instances. But only the Hambantota issue has gained publicity. First, he was stripped off his civic rights by an election petition in 1979. Due to the electoral rule violations committed by him while supporting Mr. Sarath Mutthettuwagama in the Kalawana bi-election, Mr. Muttettuwagama lost his seat. Both of their civic rights were suspended. But later a three judge bench in the Supreme Court reversed the decision and acquitted him.

Later in 1983 during the election in Beliatte, he was accused of shooting three people. Two of them died. But one survived. So there are two murder charges and one charge on attempted murder. Mahinda Rajapaksha went to jail. But later he was released by a magistrate despite the existence of eye-witness records. All these have built his character. That is how the violence, corruption and fraud has come out at present.

Recently a person told me that I had the power to send Mahinda Rajapaksa to jail with one sentence. And I apologized from him for failing to do so.

Are you going to contest as the common candidate?
No. That’s never going to happen.

Then who should be the common candidate?
Under this situation the best choice is Mr. Karu Jayasuriya.