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| 02/11/2014 |
Dr. Reeza
Hameed
I have
discussed elsewhere a few a days ago the contention that President Rajapaksa is
not qualified to fight an election for a third term by virtue of the operation
of Article 31(2) of the Constitution. The repeal of that article by the
Eighteenth Amendment does not remove the past operation of anything suffered
under the repealed law.
Since
ex-CJ Sarath Silva first raised this issue, lawyers and non-lawyers have tried
to make the case that Sarath Silva is wrong and that President Rajapaksa is not
prevented by the Constitution to seek a third term. I have pointed out, and so
has Suri Ratnapala, that the relevant section of the Interpretation Ordinance
to look at is section 6(3) (a).
Yet, some
commentators have relied on another section of the Ordinance, namely section
6(3)(b), and have argued that it does not apply to President Rajapaksa as he
has not acquired a ‘penalty’ under that section! It is an argument that suffers
from the fallacy of the false premise.
For it is
not section 6(3) (b) that is relied on. It is, on the contrary, section 6(3)(a)
which provides that:
"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-
(a) The
past operation of or anything duly done or suffered under the repealed written
law;" (emphasis added)
In this
article I will deal with some of the other arguments that have been advanced to
support the position that President Rajapaksa can seek a further term. I will
also highlight some of the basic principles that militate against a Rajapaksa
third term.
Most
constitutions have term limits
One such
argument is based on the supposition that in all countries except the USA,
including all commonwealth countries, there is no limit on the number of terms
a president could serve. But, in truth, term limits have been imposed by most
of the constitutions where the presidential system obtains.
Virtually
all the countries in the African continent have constitutions that have
prescribed term limits. This is true of countries in the South American
continent, too. Nigeria, Ghana, Kenya, South Africa, the Maldives and
Afghanistan operate a presidential system with term limits. In Nigeria and
Ghana, a person may be elected as president for a maximum of two four-year
terms. The Maldives, South Africa, Afghanistan and Kenya all prescribe two
five-year terms.
There are
a few exceptions but they are not worthy of emulation in a democratic country.
The
Bolivian constitution limits the presidential term to two, although Mr Morales
got round this limitation by arguing that he served his first term under the
old constitution which had been replaced. Fujimori of Peru controversially ran
for a third term in the face of a two-term limit. He got round the limitation
by arguing that his first term did not count because he was first elected under
a previous constitution. A law was passed to adopt his interpretation that the
first term did not count and when the constitutional judges disagreed, he
sacked them. Recently, Rossana Favero-Karunaratna in an article drew attention
to this saga.
The South
Korean strongman Syngman Rhee paved the way for his re-election for a third
term by first forcing a change to the Constitution which allowed the president
to be elected by a direct popular vote. He threatened the National Assembly
with dissolution if it did not approve the constitutional change. To push
through this change he imposed martial law and repressed all political
activity. The Assembly’s vote for the constitutional revision was taken in the
middle of the night.
More
constitutional changes were made to enable Syngman Rhee to enjoy the office of
president for an unlimited term. He even ran a fourth time and won with a
massive majority. The people of Korea got tired of his rule and found it hard
to digest. Ultimately, his constitutional manipulations and misrule provoked a
popular revolt leading to his downfall.
These
precedents highlight the dangers inherent in a system capable of perpetuating
power in the same hands without limit. The precedents cited here highlight the
importance of adopting - and sticking to - basic democratic traditions and
values and having safeguards such as fair elections with a view to promoting
succession by peaceful change.
The
two-term limit was originally entrenched in our own constitution to avert such
an eventuality, to deter abuse of power and to ensure a change of guard at the
top at the end of two terms.
The
Limits on President’s term
Power
when left in the same hands for far too long tends to be abused. It is this
fear that provides the rationale for limiting the presidential term. The corollary
of this principle is that a change of rulers is desirable for the survival of
democratic institutions. Periodic elections are the essence of constitutional
democracies and elections are meaningless if they do not facilitate change.
Otherwise, the country would be saddled with an elected dictatorship.
The 1978
Constitution created the office of a directly elected President and invested
this office with unprecedented powers. Significantly, the President was given
immunity from suit for the duration of his term in office, his term was fixed
and the period when a poll could be called for presidential elections was
clearly specified.
The
rationale for the introduction of an elected president was to insulate his
tenure from the vagaries of changing majorities in the legislature and to make
it stable. The six-year term and the two-term limit were important elements of
the constitutional arrangement pertaining to the terms of his office.
The head
of state enjoyed immunity of suit under the 1972 Constitution, too, but he
exercised only nominal powers; the Prime Minister, who was the real head of the
executive, enjoyed no such immunity. In order to minimise the potential for
abuse, the 1978 Constitution provided that a person could serve a maximum of
two six-year terms and disqualified him from seeking office thereafter.
Suriya
Wickremasinghe, Civil Rights Movement Statement on 18th Amendment to the
Constitution, drew attention to the grave misgivings that were entertained by
many about the Executive Presidency when it was first introduced. According to
her, some of these fears ‘were slightly assuaged by the two term limit’ which
somewhat assured them that a President would enjoy immunity from suit for no
more than twelve years. ‘This is already long enough for an injured party to
wait for redress, for memories to stay fresh, for witnesses to remain available
and healthy.’
The Third
and Eighteenth Amendments interfered with this arrangement. The Eighteenth
Amendment entrenched the worst features of the presidential system of
government by removing the two-term limit along with the Constitutional Council
introduced by the Seventeenth Amendment, which were the only, albeit somewhat
weak, checks left on the already powerful President.
The Third
Amendment
It all
began with the Third Amendment. The Third Amendment was the first measure that
upset this arrangement which had been fine-tuned and deliberately put in place
to act as a check against presidential abuse. This amendment made it possible
for the President to call for a poll after the expiry of four years into his
first term only. J R Jayewardene, when discussing the draft Constitution in
Parliament, had stated:
"When
we are elected for six years, we have no right to change that without the
people giving us a mandate to change it … and we do not intend to change that
provision by one day."
The Civil
Rights Movement petitioned the Supreme Court for a declaration that the
amendment required a referendum. Mr Nadesan QC, who appeared for the CRM
assisted by Suriya Wickremasinghe and the writer, argued that the fixed term
was put in place to secure stability to that office and it was an essential
element of the office to which the people had delegated a part of their
sovereignty, namely their powers of government. The amendment, by interfering
with this arrangement, impinged on Articles 3 and 4 of the Constitution.
Therefore, it required approval at a referendum.
This is
an eminently valid argument because, when Article 4 stated that the executive
power shall be exercised by the President, it meant that it shall be exercised
by the President holding office subject to the terms and conditions set out in
Chapter VII, including Article 31.
The
Court, presided over by Justice Sharvananda, accepted that the Third Amendment
impacted on Article 3 but, because it enabled early elections to be called, it
enhanced the people’s franchise, which formed part of their sovereignty.
The Court
rejected the petitioner’s argument that the Bill gave the incumbent President
seeking re-election an electoral advantage by giving him the discretion to
choose the most opportune time for election. The instability of the executive
that Jayewardene wished to avoid was caused precisely by the power of
dissolution of parliament that Prime Ministers acting under the parliamentary
system were able to exercise before its term ended. Yet, the Court based its
conclusion on the questionable premise that it was an accepted convention of
any democratic government that the Prime Minister as an incident of his office
was entitled to choose the date of Parliamentary election; therefore the
President could do the same.
If the
Court’s rationale were carried to its logical conclusion and elections are held
every year, then the franchise rights of the people would be enhanced even
further but that would lead to what mathematicians and logicians call a
reductio ad absurdum.
It
ignored the people’s wish that they did not want any enhancement of their
franchise as stated by the Court, which they had indicated by insisting that no
elections shall be called more than once in six years. The people did not wish
to interfere with the term of the President’s office because they wanted to
give stability to that office and required him to give effect to their mandate.
They had
even provided that if a vacancy were to occur in that office during the
pendency of a term, as when a President dies or is removed from office, then it
shall be filled by a process other than election. Frequent elections would
drain the state’s financial resources and make it impossible for its incumbent
to give effect to the mandate given to him.
The
Eighteenth Amendment
The
Eighteenth Amendment interfered with another significant component of the
presidential package described above.
When the
Eighteenth Amendment Bill was referred to the Supreme Court for an opinion on
its constitutionality, several persons petitioned the Supreme Court for a
ruling that the Bill required approval at a referendum. They argued that the
Bill required such approval because several of its provisions were inconsistent
with basic provisions in the Constitution which engaged the referendum. It was
argued in particular that the removal of the term limit would affect the manner
in which the executive power of the people would have to be exercised.
As it had
done with the Third Amendment, the Court presided over by Chief Justice Shirani
Bandaranayake acknowledged that Articles 3 and 4 had to be read together but
went on to hold that the removal of the two-term limit actually enhanced the
franchise by giving the people a choice of candidates, including a person who
has served two terms already
It is
apparent from the Court’s opinion that it had dealt with the petitioners’
arguments in a rather cursory manner. No attempt was made by the Court to
identify in sufficient detail the arguments that were presented to it. The
Court failed to appreciate the degree to which its interpretation would
fundamentally undermine the terms subject to which the office of President had
been created and to which vast powers had been delegated. The Court failed to
consider the impact that the Amendment might have on the terms subject to which
the people had delegated their powers of government to the President. The Court
referred to the impact the Amendment had on Article 4(e) but did not give its
mind to the impact it had on the powers of government mentioned in Article
4(b). The Court’s misconceived and misplaced emphasis on Article 4(e) led it
towards an erroneous interpretation.
The
Bandaranayake Court had an opportunity to correct the errors made by the
Sharvananda Court but it proceeded to make the same errors because it adopted
the same faulty reasoning and logic as had been adopted by its predecessor. The
Court in both instances failed to appreciate the drastic consequences that
these two amendments might have on those terms of the office that were fixed in
order to prevent abuse of power. In fact, the Eighteenth Amendment represented
a multi-pronged attack on those Constitutional provisions which were designed
to operate as a check on the enormous power given to the Executive.
Asanga
Welikala has noted in an article elsewhere the indecent haste with which the
Eighteenth Amendment Bill was rushed through the Court and Parliament as an
urgent measure. It is impossible to understand the urgency behind the
introduction of the Bill. The President had been re-elected only a few months
before and there was no prospect of any election for about four more years; the
people would have been tired of elections and the thought of elections would
have been far from their minds.
Such
haste had the effect of preventing a fully informed debate taking place on the
Bill’s merits. Indeed, the petitioners who intervened in Court were not
provided with accurate copies of its text until after the Attorney General had
commenced his submissions to Court. It is almost certain that no submissions
were made on the Bill’s effect on the president’s immunity from suit. Both the
Court and the lawyers who appeared before the Court were placed under severe
constraints and had inadequate time to gain a proper insight into the Bill’s
purport and its ramifications. Consequently, the Court did not have the benefit
of an informed discussion on the Bill. To compound the matter, the Court
performed the extraordinary feat of pronouncing judgment on the Bill’s
constitutionality within a day.
Not much
discussion took place in Parliament. Many members absented themselves from
Parliament when it was taken up there and members who did attend must have had
their minds occupied by other urgent matters affecting their electorates
rendering them unable to make a careful study of its contents, to understand
its consequences and to make meaningful contributions, especially with the
three line whip hanging over them.
Conclusion
I have
made these points to emphasis the fact that the Third and Eighteenth Amendments
went against the original intent of the Constitution. The Supreme Court has
failed time and again to realise that the judicial power that is reposed upon
it is a power that has been delegated to it by the people. The Court has a
responsibility to protect the fundamental values which the people have
enshrined in their constitution and to ensure that neither Parliament nor the
Executive shall encroach upon those values.
When the
Court was called upon to examine the Eighteenth Amendment Bill it had an
opportunity to correct the errors that were committed by a previous Court but
it failed to grasp that opportunity and gave in to the wishes of the Executive
without much demur. It remains to be seen whether the Court would rise up to
the occasion if and when an opportunity presents itself to undo its failings.
Regardless
of the missed opportunities of the Court and Parliament to make amends,
President Rajapaksa is prohibited by the Constitution from proceeding to a
third term. The repeal of Article 31(2) by the Eighteenth Amendment does not
remove the past operation of the disqualification he had suffered before that
Amendment.
The
author is an Attorney-at-Law.
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