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| 02/11/2014 |
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| Prof. Suri Ratnapala |
The Sri
Lanka Bar Association obtained expert legal opinion from Prof. Suri Ratnapala a
Sri Lankan legal academic resident in Australia as to whether President Mahinda
Rajapaksa is qualified to contest for the presidency for the third time. The
opinion given by Prof. Ratnapala can be summarized as follows:
1. On
26 January 2010, President Mahinda Rajapaksa was elected president for the
second time and on that very day, he became disqualified from contesting the
presidency again in terms of Article 31(2) of the constitution.
2. On 9 September 2010 the 18th Amendment
repealed Article 31(2) of the constitution.
3. There is no doubt that President Mahinda
Rajapaksa was disqualified from seeking a third term during the period 26
January to 9 September 2010.
4. The present question is whether that
disqualification was removed by the 18th Amendment.
5. The answer would depend on the further
question whether the repeal of Article 31(2) applies only to presidents elected
in the future or operates in relation to any president elected before or after
the 18th Amendment.
6. The legal effects of a repeal of a
written law are governed by section 6(3) of the Interpretation Ordinance which
goes as follows:
"6(3)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past operation of or anything duly done or suffered under the repealed written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;
(b) any
offence committed, any right, liberty, or penalty acquired or incurred under
the repealed written law;
(c) any
action, proceeding, or thing pending or incomplete when the repealing written
law comes into operation, but every such action, proceeding, or thing may be
carried on and completed as if there had been no such repeal."
The
incumbent president’s disqualification during the period between the date of
his second election and the date of enactment of the 18th Amendment is clearly
‘something suffered’ under the repealed written law within the meaning of
Section 6(3)(a) of the Interpretation Ordinance.
7. The 18th Amendment contains no express
provision to the effect that it will remove retrospectively the
disqualification of President Mahinda Rajapaksa. Therefore the disqualification
remains effective.
8. An interpretation of the 18th Amendment
that has the effect of removing the disqualification of a twice elected
president will defeat the public interest by negating an important condition
under which the 2010 election was held.
9. The condition established by Article
31(2) was not trivial. It represented a vital element in the system of checks
and balances commonly found in democratic constitutions that vest executive
power in an elected president. It is a condition under which the electorate
voted in 2010.
10. The negation of this condition is
inconsistent with Article 3 of the constitution which guarantees the right of
franchise. "If the 18th Amendment had negated this condition, it could not
have been enacted except with the approval of the people at a referendum as
required by Article 83. The court did not consider the possibility of the
retrospective operation of the amendment as that question was not raised in
argument."
11. Any person who has twice been elected to the
office of president before the enactment of the 18th Amendment is disqualified
from being nominated or elected for a further tem as president.
Disqualifications
have to be triggered
We see
from the foregoing that Prof. Suri Ratnapala has not really said anything new
but only echoed the views put forward by former chief justice Sarath N.Silva
and Dr Jayampathy Wickremeratne. The first matter that should be taken up is
the assertion made by both Silva and Ratnapala that the disqualification from
contesting more than twice is operational from the very day that a person is
elected president for the second time. Is that really the way a legal
disqualification operates? Is it the case that a president who wins an election
for the second time carries the disqualification from contesting a third time
on his back like a sack of potatoes? Was President Chandrika Kumaratunga
carrying the disqualification from contesting a third time on her back from
1999 when she won a second term until she was at last able to put the burden
down in 2005?
Legal disqualifications however are not things
that you carry around on your back. A disqualification kicks in only when a
triggering event occurs. Until that event occurs, the individual concerned is
not a disqualified person at all. We can elucidate this with the help of
examples. There was a 1995 case in the Supreme Court of Iowa in the USA, Wiebenga v. Iowa Department of Transportation
where one Stephen Wiebenga had been charged with driving a commercial vehicle
while intoxicated. At the time of his arrest, he was found to have a blood
alcohol level of 0.141 which was over the level of 0.04 which triggered
disqualification for a commercial motor vehicle licence. Had his blood alcohol
level been below the legal threshold, Wiebenga would not be disqualified even
if he had been driving after taking a few drinks. To give another example, in
the state of California where all judges are elected, the California Supreme
Court Committee on Judicial Ethics has laid down the rule that a judge who has
received anything more than $1,500 as election campaign donations from a lawyer
appearing before him, is mandatorily disqualified from hearing that case. The
trigger is the $1,500 threshold. A judge who has received less than that from a
lawyer appearing in a case before him, would not be disqualified from hearing
that case.
Disqualification from holding an elected
office is a matter that has come in for a great deal of discussion in
neighbouring India as well. There is in this regard a recent Indian court case
which is of great importance to us Sri Lankans. It was the July 2013 judgement
in the Indian Supreme Court case of Lilly Thomas v. Union of India that took
Jayalalithaa Jeyaram out of the Tamil Nadu chief ministership. In this case too
the matters under discussion were disqualifications to hold elected office and
the triggering events that activated those disqualifications. The 1951 Representation
of the People Act of India stipulated that a person convicted by a court of law
of certain named offences would be disqualified from holding elected office.
However, there was a loophole in Section 8(4) of that act which gave sitting
members of parliament or state legislative assemblies a grace period of three
months to lodge an appeal and while this appeal was pending the
disqualification from holding office would not operate. The disqualification
would be triggered only if the appeal was rejected by the higher court and all
avenues for appeal had been exhausted.
However last year, the Indian Supreme Court in
Lilly Thomas v. Union of India struck down section 8(4) of the Representation
of the People Act which allowed sitting MPs and members of the state
legislative assemblies to continue to hold elected office even after they had
been convicted by a court provided they had lodged an appeal against the
conviction. Had Section 8(4) of the Representation of the People Act been
operational today, Jayalalithaa would still be the chief minister of Tamil
Nadu. It is thanks to the 2013 decision in Lilly Thomas v. Union of India that
she is out of office and the pressure on Sri Lanka has been palpably reduced.
What this judgment did was to bring forward the event that would trigger
disqualification from holding elected office to the point of conviction,
instead of allowing convicted politicians to hold on to office until all legal
avenues for appeal had been exhausted. There is an ongoing discussion in India as
to whether the triggering event disqualifying politicians from holding once
should not be brought forward even more. The March 2014 Law Commission of India
Report on Electoral Disqualification actually recommended that the trigger for
disqualification be brought forward to the point where charges are filed
against a politician instead of waiting for a conviction! The Indian Law
Commission’s argument was that the framing of charges is based on adequate
levels of judicial scrutiny and that by bringing disqualification forward to
this point, the spread of criminalization of politics may be curbed.
What we have to learn from the foregoing is
that disqualifications are not things that people carry on their backs like
sacks of potatoes but are triggered only on a certain event taking place. In
President Mahinda Rajapaksa’s case, any disqualification from holding office
for the third time will kick in only when he actually presents his nomination
papers to contest a presidential election for a third time and not otherwise.
It is not possible to contend as Sarath N. Silva and Suri Ratnapala have, that
Rajapaksa was disqualified from the very day he was elected for the second time
on 26 January 2010. As we said earlier, disqualifications are not sacks of
potatoes that one carries around on one’s shoulders. Disqualifications kick in
only when an event triggers it.
For example, Article 92 of our constitution
says that persons below 30 are disqualified from being elected president. Does
that mean that every youth in this country between the ages of 18 and 30 is
carrying that disqualification around on his shoulders like a sack of potatoes?
I think not. The disqualification on those below 30 being elected president
will kick in only when a person below the age of 30 tries to hand in
nominations to contest for the presidency, not otherwise.
Both Sarath Silva and Suri Ratnapala have
argued that since the disqualification from being elected more than twice -
Article 31(2) - was still in the constitution at the time Mahinda was
re-elected for the second time, it still applies to him because when it was
repealed by the 18th Amendment, there was no further provision that would have
made the repeal retroactive. The disqualification from contesting more than
twice was certainly in the constitution at the time MR was re-elected for the
second time. But that disqualification would have been triggered only when MR
actually tried to contest a third time by handing in his nomination papers.
It is not possible to say that MR was disqualified
from contesting a third time on the very day that he was elected for the second
time as Sarath Silva has done. It is also not possible to say as Suri Ratnapala
has done that the disqualification from contesting more than twice was
operational from 26 January 2010 until the 18th Amendment was passed on the 9th
September 2010. How can a disqualification be active if no event had occurred
to trigger it?
Back on 26 January 2010, MR had just been
elected president for the second time. He had not handed in his nominations to
contest for the third time. Indeed even as of this moment, a presidential
election has not been declared and MR has not handed in his nominations for the
third term. So nothing has yet happened to trigger a disqualification even at
this late day! Even if Article 31(2) had still been in the constitution, MR
would not have been disqualified from contesting a third time unless he
actually handed in his nominations which act would have triggered the
disqualification. Now however, Article 31(2) no longer exists in the
constitution and if MR decides to hand in nominations for the third term, there
is no disqualification to get triggered!
The need for a referendum
Prof.
Ratnapala has also argued that the repeal by the 18th Amendment of the disqualification on
contesting more than twice was not made expressly retroactive and therefore
that disqualification still adheres to MR who was elected to power for the
second time before the 18th Amendment came into force. We have gone over this area of retroactive
legislation before and to recap would like to state the following:
a) As Mr Sarath Silva himself once pointed
out, Article 75 of our constitution allows the passage of retroactive
legislation and even the retroactive repeal of constitutional provisions. There
is absolutely no fetter on our parliament in that regard.
b) In the USA from where we have borrowed
many constitutional features such as the executive presidency and impeachment
procedure, retroactive legislation (ex post facto laws) was expressly banned by
article 9 of the US constitution. But starting from Calder v. Bull the US
Supreme Court started a 200 year tradition where the retroactivity of laws was
prohibited only if substantive rights were involved.
c) Calder v. Bull (1789) was a testamentary
case where an appeal was time barred. Subsequent legislation removed the time
bar and the litigant made a successful appeal. The US Supreme Court decided at
that early stage that the prohibition on the retroactivity of laws applied only
to criminal laws and not civil matters.
d) In subsequent decades and centuries, the
law relating retroactive laws was further refined and the position today is
that retroactive laws are not allowed in the USA only if substantive rights
relating to both the criminal and civil sphere are involved. Landgraf v. USI
Film Products was a 1995 case where a litigant claiming sexual harassment in
her workplace tried to sue her employer on the basis of new laws that were
passed while her case was still going through the courts system. In this
instance, the US Supreme Court disallowed the retroactive application of the
new law because that would burden the employer with punitive provisions that
did not exist at the time the cause for complaint arose. Since a substantive
right of the employer was at stake, the Supreme Court did not allow the
retroactive operation of the new law.
e) The Civil Law Code of the Louisiana state
states the present US law relating to retroactive laws in a succinct form.
Substantive laws apply prospectively (for the future) unless it is specifically
stated that it has retrospective application. However procedural and
interpretative laws apply both prospectively and retroactively, unless the law
states specifically that the law will apply only prospectively. Note that in
Calder v. Bull what was at stake was a procedural matter where a time bar was
removed. When it comes to procedural matters like removing time bars or
disqualifications like not being able to contest more than twice, the law
automatically applies prospectively as well as retrospectively.
f) Narayanan v. Narayanan was a case heard
in the Connecticut Supreme Court in 2012, which upheld the American law
relating to retroactive laws as for example elucidated in the Louisiana Civil
Code quoted above. In addition to that this case also stated specifically that
statues that impose limitations fall within the definition of ‘procedural laws’
which automatically get activated both prospectively as well as
retrospectively. (Since we have borrowed the parliamentary system from Britain
and the presidential system and the impeachment procedure and other such
features from the US constitution, it is only right that we should take due
note of the laws that appertain in those countries in deciding matters of
constitutional law here.)
Prof.
Ratnapala has also argued that the limit on two terms was an important
‘condition’ under which the 2010 January presidential election was held and
that the negation of this condition is inconsistent with Article 3 of the
constitution which guarantees the right of franchise. He says that this was a
matter on which a referendum should have been held. Here Prof. Ratnapala is
echoing the views expressed by Dr Jayampathy Wickremeratne. The first thing
that we have to realize is that that the limitation on two presidential terms
that existed before the 18th Amendment was introduced is not a ‘condition’.
Article 31(2) was just a constitutional limitation, a cap. This limitation
constituted a disqualification that would be triggered automatically if a
person who has already served two terms as president came forward to seek
nominations for a third time. Now that limitation no longer exists in the
constitution and there is no bar to the incumbent president seeking to contest
an election for the third time.
Finally
we must deal with the idea expressed by Suri Ratnapala and Dr Jayampathy
Wickremeratne that the repeal of article 31(2) should have been the subject of
a referendum because it affects the Article 3 of the constitution, which
guarantees the right of the franchise. It is certainly true that Article 3 is
one of the 11 sections of the constitution for the alteration or amendment of
which a referendum is needed in addition to a two thirds majority in
parliament. However Article 3 is not in any way affected by the repeal of Article
31(2). Article 3 of the Constitution goes as follows:
"3.
In the Republic of Sri Lanka sovereignty is in the people and is inalienable.
Sovereignty includes the powers of government, fundamental rights and the
franchise."
There are
two sentences here. The first is the sentence which says that sovereignty vests
in the people and is inalienable. The second sentence explains what this
‘sovereignty’ consists of. The word ‘franchise’ does occur at the end of the
second sentence but everyone can see that this word occurs only in explaining
the components of sovereignty. Article 31(2) was not about sovereignty or even
about the franchise. And its repeal only removed a limit placed on the number
of terms a president could be elected to power.
At one seminar, President’s Counsel Ali Sabry read out with relish a
passage from the Supreme Court Determination on the 18th Amendment which was
given by a five member bench headed by former CJ Shirani Bandaranayake where
they had clearly stated that the repeal of Article 31 (2) of the Constitution
by no means would restrict the franchise but on the contrary would actually
enhance it since the voters would be given a wider choice of candidates
including a president who had been elected twice!
Since the repeal of Article 31(2) does not
impact on Article 3 of the constitution, no referendum was considered
necessary. The mere occurrence of the word ‘franchise’ in Article 3 does not
entitle anyone to call for a referendum. A referendum would need to be called
if only some amendment was inconsistent with Article 3. The repeal of Article
31(2) does not in any way detract from the provision that sovereignty resides
in the people. Nor does it affect the franchise. It has also to be noted that
there is nothing in the constitution to say that a change in the electoral
system (which does change the way the franchise is exercised) needs approval at
a referendum. The 15th Amendment to our constitution made a radical change in
the electoral system by reducing the district-wise cut off point to get elected
to parliament from 12.5% to 5%. This is what gave rise to the present
phenomenon of minor parties in parliament. Yet no referendum was held in
relation to the 15th Amendment.
Article 3
of the constitution would trigger the need for a referendum only if the clause
that "sovereignty resided in the people" were to be changed or the
franchise (which according to Article 3 is an integral part of the sovereignty)
were to be taken away from the people. Since the 15th Amendment did not take
sovereignty or the franchise away from the people, no referendum was necessary.
Similarly, since the repeal of the limit on two terms for presidents did not
take sovereignty or the franchise away from the people, no referendum is
necessary for that either.
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