By Nihal Jayawickrama –
Dr. Nihal Jayawickrama
One of the declared objectives of the Government in introducing the Bill for the 19th Amendment to the Constitution was to restore the provision that no person who had been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People. That provision in the 1978 Constitution had been repealed in 2010 by the 18th Amendment. Did Parliament achieve the objective of reviving that disqualification? It would appear that that endeavour failed. Why?
- The 19th Amendment, by repealing and replacing Article 3 of the Constitution, abolished the existing office of President and replaced it with a new office of President.
The office of Executive President was established by Article 30 of the 1978 Constitution. It read:
30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.
(2) The President of the Republic shall be elected by the People and shall hold office for a term of six years.
In 2015, section 3 of the 19th Amendment provided as follows:
Article 30 of the Constitution is hereby repealed and the following substituted therefor:
30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.
(2) The President of the Republic shall be elected by the People and shall hold office for a term of five years.
The only difference between these two versions of Article 30 was in respect of the term of office: six years in the former, and five years in the latter. If that was the only amendment that Parliament intended to make, the normal way of doing so would have been for section 3 of the 19th Amendment to have provided as follows:
Article 30 of the Constitution is hereby amended by the substitution in paragraph (2), for the words “six years”, of the words “five years”.
Why, then, was the normal form of drafting not followed? Why was it necessary to repeal Article 30 and thereby abolish the existing office of President and then proceed to establish a new office of President? The answer lies in the remaining 48 sections of the 19th Amendment and in the 56 sections of the amending Bill.
- The powers, functions and duties of the new office of President are fundamentally different that those of its predecessor.
It is significant that it was not only Article 30 that was repealed and replaced, but also Article 33 which specified the Duties, Powers and Functions of the President; and Chapter VIII which provided for the appointment of the Executive: the Prime Minister and the Cabinet of Ministers.
In 1978, what the National State Assembly established, through the new Constitution, was the office of Executive President. That office was the fount of all power and patronage. Acting on his own initiative, the President made appointments to every important office of the State, from Prime Minister, Cabinet Ministers, and Deputy Ministers to Judges of the Supreme Court and the Court of Appeal; from the Attorney General and the Secretary-General of Parliament to the Auditor General and the Commissioner of Elections, the Public Service Commission, the Judicial Service Commission, and the Parliamentary Commissioner for Administration. The President could dissolve Parliament at any time after it had functioned for one year following a general election. While he held office, no proceedings could be instituted against the President in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.
Under the new Article 33, the President was intended to be “the symbol of national unity”. Inexplicably, the Supreme Court rejected that description as being unconstitutional, the reason being that in 1981 the then Cabinet of Ministers had “categorically stated that the National Flag is the symbol of the unity of our People”. The national flag is referred to in Article 6 of the Constitution and depicted in the Second Schedule, with no reference whatsoever to it being the symbol of national unity. This was perhaps the first occasion when the Supreme Court elevated a cabinet decision to the status of a constitutional provision. Be that as it may, the new Article 33 also requires the President, inter alia, “to respect and uphold the Constitution”, “to promote national reconciliation and reintegration”, and “to ensure the creation of proper conditions for the conduct of free and fair elections”: duties and functions which were not previously required.
The office of President established by the 19th Amendment is fundamentally different from its predecessor. The President now cannot appoint or remove Ministers and Deputy Ministers except on the advice of the Prime Minister. His power to remove the Prime Minister from office was expressly repealed. In making appointments to the high offices of the State, including Judges and the Attorney General, and to all the Independent Commissions including some that were newly constituted, he is required to act on the recommendation of the 10-member Constitutional Council to which he may on his own appoint only one member. The President’s power to dissolve Parliament may be exercised only on the request of two-thirds of its members, except during the last six months of its five-year term. He no longer enjoys immunity from judicial proceedings, and any person may now challenge his official acts or omissions in the Supreme Court. Indeed, the new duty imposed on him to ensure the creation of proper conditions for the conduct of free and fair elections suggests that he should not be actively involved in any political party contesting such elections. Despite the few residuary powers which he retains, such as appointing Ambassadors, Ministry Secretaries and Governors of Provinces, the office of President established under the 19th Amendment is now more in the nature of a constitutional Head of State.
- That the two offices of President are distinct and separate from each other is also evident from the transitional provisions.
Following the establishment of the new office of President, it became necessary to provide for the continuance in office of the person elected in January 2015 to the previous, but now abolished, office of President. Accordingly, a transitional provision (Section 49) was inserted into the 19th Amendment. It stated that:
“The persons holding office respectively, as the President and Prime Minister on the day preceding April 22, 2015 shall continue to hold such office after such date, subject to the provisions of the Constitution as amended by this Act.”
This transitional provision became necessary because the offices which Mr Maithripala Sirisena and Mr Ranil Wickremasinghe held since January 2015 had ceased to exist when Article 30 and Chapter VIII of the Constitution were repealed. The offices of President and Prime Minister established by the 19th Amendment were new offices, and it was therefore necessary to provide for these two persons to continue to function in these new offices, but subject to the reallocation of powers introduced by the 19th Amendment. The significance of this reallocation is evident from an unprecedented provision, section 51, in the amending Bill. It stated that, notwithstanding anything to the contrary in the Constitution, President Sirisena may also serve as the Minister of Defence, Mahaweli Development and Environment. No person had previously been appointed a Minister by an Act of Parliament.
- The disqualification is only applicable to the office of President established by the 19th Amendment since it was not applied retrospectively to those who had been twice elected to the office of President that was abolished by the 19th Amendment.
To revert to the question raised at the outset, a new Article was indeed included by the 19th Amendment, immediately below that which created the new office of President. That Article 31(2) reads:
“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”.
To whom does the disqualification in Article 31(2) apply? On the one hand, it undoubtedly applies to anyone who has been twice elected to the office of President established by the new Article 30 introduced by the 19th Amendment. On the other hand, this is an entirely new prohibition on a citizen’s right to be nominated to stand for election and to be elected. Immediately prior to the 19th Amendment, the Constitution did not impose such a disqualification. Therefore, a person who had previously been twice elected to the office of Executive President established by the repealed Article 30 was not subject to such a disqualification and did not suffer such a legal disability.
Whether advisedly or inadvertently, Parliament did not provide in the 19th Amendment for this new constitutional disqualification to retrospectively apply to citizens who had previously been twice elected to the former (since abolished) office of President. A law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention. Accordingly, it would appear that the two surviving former Presidents, Mrs Chandrika Kumaratunga and Mr Mahinda Rajapakse, not having been made subject to this disqualification, are eligible to seek election to this new, essentially non-executive, primarily symbolic and ceremonial, office of President whenever an election is held.
Ajay / August 19, 2018
Okay then ….. ….. the two buffoons have managed to screw up the 19th amendment, and we are going to see the return of the Old King, but this time as the ceremonial baboon president. Our politics is looking increasingly like a comedy of errors.
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Janaka from Matara / August 19, 2018
How do you know all our legal experts, including this one, are not buffoons.
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sach / August 21, 2018
If you accept them to be buffoons, why do you want them to lead the country? Is destruction of SL your motive?
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old codger / August 19, 2018
What all this boils down to is that our lawyers are as incompetent as many of our other “professionals”. Will the lawyers now come out against the various free trade agreements?
We should go back to the Soulbury constitution (drafted by a profressional) and make any amendment impossible.
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Eardley Abayaratna / August 21, 2018
All this shows that the the current constitution which has been tinkered by the Parliamentarians to have 19 amendments in 40 years has outlived its original purpose and is no longer a document that meets the aspirations of the People. Every amendment has only served to satisfy the Rogue Parliamentarians to further their narrow aims and consolidation of power in their hands.
This is why Nagananda Kodituwakku is advocating a new “Autochthonous Constitution” to restore the supremacy of the Citizen and the Rule of Law.
I think a new discussion should be started on this subject.
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Sarrij / August 22, 2018
E A.
Repetitio est mater studiorum; so goes the Latin phrase.
The local experts at constitution making are really a bunch of ignoramus.
Better get outside help to get a job done properly.
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wannihami / August 24, 2018
Codger dear I also think we shrewd get it draftred by a profressional as you suggest.
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nalmen / August 19, 2018
if you are correct gota will have to give up his presidential aspirations as mahinda will want to contest
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wannihami / August 24, 2018
Nalmen, may be MR knew all along, even when passing the 19th oopsies.
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law student / August 19, 2018
Nihaj J’s argument that the office of President under 19th Amendment is a new office is ridiculous. If it is a new office, where is the provision in 19A that says Sirisena is ‘deemed’ to have been elected to the new office? If NJ is correct, then Sirisena is an imposter in the ‘new’ office of President! On the other hand, section 49 (1) (b) of 19A says: “the persons holding office respectively, as the President and Prime Minister on the day preceding April 22, 2015 shall continue to hold such office after such date, subject to the provisions of the Constitution as amended by this Act”. The words ‘shall continue to hold such office’ debunks NJ’s argument. His statement that it is a new “essentially non-executive, primarily symbolic and ceremonial, office of President” is equally flawed. If it is so, surely the Supreme Court would have ordered a Referendum for 19A.
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lawyer of the 70's / August 19, 2018
Is Nihal now gravitating towards MR, courtesy GL Peris, his brother-in-law? Even after the 19th Amendment, the President is head of the executive, head of the government and chairs the Cabinet. Ranil tried to take away the ‘head of government’ position but was thwarted by the Supreme Court. How can Nihal then say that it is a non-executive, primarily symbolic and ceremonial, office? We remember how he supported Felix R. Dias in every dirty trick when he was Minister of Justice (Felix who took the name ‘Bandaranaike’ after saying ‘poetic justice’ when he heard of SWRD’s assassination at the Bar table of the Kurunegala District Court). We also remember how Nihal was ordered to sit behind by Chief Justice Tennakoon at a ceremonial sitting. Nihal, of course, was born again as a human rights academic.
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sarath de alwis / August 20, 2018
The two brothers in law are as different as Chalk and Cheese.
Nihal J stands for his values. GL s[h]its on his values.
The lawyer of the 70s should know that Nihal J represents a valued tradition in our jurisprudential history – that of Justice T.S. Fernando.
Felix did not take the name Bandranaike . He merely restored an appellation dropped by his anglophone, pompous father. Read Professor Yasmin Gooneratne’s ‘Relative Merits.’
Nihala J served Felix as loyally as Mark Fernando served JRJ . That Mark Fernado J later turned out to be a fearlessly original jurist is another story.
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Nihal Jayawickrama / August 21, 2018
Mr Sarath de Alwis,
Thank you for your kind reference to my uncle, the late Justice T.S.Fernando, in whose home I spent my formative years, from childhood to adolescence to early adulthood. In my view, the Supreme Court of which he was a member was the high water mark in our judicial history. It was a time when we possessed a truly competent, independent and impartial judiciary, buttressed by an equally competent and vibrant legal profession. The citizen could confidently expect not only quality professional representation, but also equal justice under the law. The judiciary was rarely inhibited by the pomp and splendour, or the power and authority, of the State or its agents. Unfortunately, these remain but distant memories today.
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Dissanayake / August 22, 2018
Sir, you have made a strong argument. I am waiting so eagerly to see the final interpretation of the Supreme Court.
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Ajith / August 19, 2018
Our law and order system, justice system, democratic system and and political system become a laughing stock. Our politics is influenced by fake Buddhist Fundamentalists who do not understand the true Buddhist teachings. Every day in real life the fake Buddhists kill Buddhism. The countries where justice system failed and fall in the hands of politicians, constitution become invalid and loose its purpose. Sri lanka is one of them and there is no future to this land.
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soma / August 20, 2018
What is your religion Mr Ajith?
Give us a break for heaven’s sake.
–
Soma
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Ajith / August 21, 2018
I am a genuine Buddhist. Why don’t you sleep tonight?
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Estate Labourer / August 19, 2018
The important thing is to interpret the law in the correct spirit and not to focus too rigidly on the exact words used. To do this one must ponder the rationale behind the 19th Amendment to the Constitution. Its objective was to prevent any person from holding the powerful office of president for a very long period in view of the fact that anyone wielding power for an extended period of time will invariably get corrupted to the core and start abusing that power. The fact that the powers of a president have been altered a little with the passage of time does not make much of a difference as it is still the top post and fundamentally the same post.
History is rife with many examples of heads of state who became dictators after holding that position for more than ten years. We could mention Ferdinand Marcos, Muammar Qaddafi, Mobutu Sese Seko, Robert Mugabe, Saddam Hussein, Fidel Castro, Jean-Claude Duvalier and Augusto Pinochet. We do not want Mahinda Rajapaksa’s name to be listed alongside by future historians, do we? He possesses all of the traits that are the hallmarks of a dictator!
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wannihami / August 24, 2018
aha but laws are not written to act retroactively (at least my layman;s logic demand that) unless stated otherwise,and passed as such, isn’t that so?
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thondamany / August 19, 2018
19th Ammendment a Wickremeratne ( That Chemistry paper fame) & Sumanthiran’s composition
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Estate Labourer / August 20, 2018
So what? We are only concerned with its substance and not about who drafted it. Anyway, it was passed by parliament.
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Bentara Elpitiya voter / August 19, 2018
How come Geetha Kumarasinghe was disqualified, if disqualifications are prospective only? She was a dual citizen when 19th Amendment disqualified dual citizens. If the argument that a disqualification applies to people who get disqualified after the amendment is made is correct, then Geetha is not disqualified as she was already a dual citizen when 19th Amendment was made. It will apply only to people who become dual citizen after the amendment. Madness.
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Mallaiyuran / August 20, 2018
You are going off the track. Disqualification is not for dual citizenship. She may still holding her both citizenship. But it is for the MP position she held. He became a MP in September 2015 election. 19A is April 2015.
But leave all that aside. just feel happy because one 8th graders is down (though its only open up a chance for another 8th grader)
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Dissanayake / August 22, 2018
Disqualification is not for becoming a dual citizen but to hold a post as a member of the Parliament. She contested the election only after the 19th amendment passed in the Parliament. You mixed the point, maybe it is subjective to you.
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wannihami / August 24, 2018
Aha, but the parliamentary election was AFTER the 19th was passed.
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Uthungan / August 24, 2018
But Geetha Kumarasinghe said even before the 19th Amendment was passed that she had renounced her Swiss Citizenship when in fact she had not. She had lied.
That is why the court had to intervene after considering a petition filed by an aggrieved SL citizen and end her Parliamentary MP status.
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K.Pillai / August 19, 2018
We are driven to resort to band-aid to slow our slide down.
Is it time to consider when and why the slide started?
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S. Thevaram / August 20, 2018
The analysis is too technical for me, but if NJ’s conclusion encourages the JO to busy themselves with a choice between MR and GR, it is most welcome. One to build a fortress on some rock (as in 495 AD) and the other to seek help from Tamil warriors (as in 2005 AD). Hooray, we are not far off history repeating itself.
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Champa / August 20, 2018
WRONG PRESUMPTION.
STUPID LOGIC.
HILARIOUS ARGUMENTS.
FAILED RATIONALE.
You say; “A law IS NOT considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention.” A logic good for dummies.
A law IS considered as imposing a disqualification retrospectively unless otherwise specifically mentioned that there are EXCEPTIONS. Otherwise a law is automatically applied to every citizen and in this case disqualifying previous Presidents who completed two-terms.
It is interesting to know the reason for singling out this particular “feature” of the 19A as any person with a sensible mind would know that it would apply to President Sirisena too who was elected when the 18A was in effect and prior to 19A was being implemented.
Moreover, the 19A does not recognize the sitting President and previous Presidents as aliens or political wizards who could nullify its provisions.
On the other hand, the Supreme Court has already given a verdict to current President, on the premise that the 19A is applied to him and thereby reducing one year from office.
Alright, I sound angry. Yes. I love former President very much but this type of DIABOLICAL PRESUMPTIONS only bring disrepute to him. ( (I am not a lawyer but hope I can use those capitalized words here to give the meaning that NihalJ’s suggestion shifts the burden of proof to the SC which has the potential to find counter-indications!)
If JO has decided to take this stupid risk, what will happen is, SC will give a ruling in par with the verdict already given based on the premise stated earlier, deriding JO’s clumsy attempt.
Then the next day, the former President will hit international headlines as another failed attempt (4th time) to contest for Presidency which is not fair. This will only bring disgrace to him.
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Dissanayake / August 22, 2018
Dr Nihal Jayawikrama´s argument is a highly qualified academic and competent legal professional. He strongly argues that the 19th amendment does not disqualify MR or CBK to contest for the next Presidential election.
Therefore, it looks you are the dummy that you are talking about. The stanza that a law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention is the accepted phenomenon.
This idea can also be derived from the 1948 Universal Declaration of Human Rights. I quote: “11 (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.” – End quote.
You can understand it by substituting the words “disqualified” for “guilty” and “disqualification” for” penal offence”
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wannihami / August 24, 2018
Dissa, that would what I would think as well by layman’s logic, yet what you cited says penal offence, that means only in criminal law is it not?
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Champa / August 24, 2018
Dissanayake
Being a highly qualified competent legal professional doesn’t give anyone an automatic privilege to be accepted by everybody.
One need not to be a legal professional to understand that his logic has no support base.
I repeat, what Nihal Jayawickrsma says is a DIABOLICAL PRESUMPTION.
There may be “accepted phenomenons” elsewhere, but when it come to a Constitution, there can’t be any guessing games. There is ambiguity in what Nihal says.
I wish to stress this point. I am an ardent supporter of former President Mahinda Rajapaksa. But I don’t want to see “pundits and legal eagles” surrounded by him taking him another ride. They did it during 2010-2015 too, which led him lose his Presidency.
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wannihami / August 24, 2018
Champa not really as NJ argues the 19th debacle provides a provision for the term change from 6 to 5 by in the transitional provision whatever (except if the word continuing nullifies the repeal, likely not?).
And the repeal of the Article is the key yet “continuing” is contradictory to repeal, isn’t it not?
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Mallaiyuran / August 20, 2018
Appointing somebody as minister of anything may not affect the constitutional status of the president, whether it had precedent of not. So arguing based on that the current EP had either affected the continuity of his office or got his office enhanced of diminished is not a valid argument. The newness of his office is not substantiated by him becoming a minister. That part could have been done even without any other part of the 19A.
Further 19A did not say president’s office under Section 30 of the 1978 constitution was repealed. It said only section is withdrawn (with the intention of polishing that section.) 1978 constitution’s present’s office was never touched. The repealing process was protecting his office by the word “For the purpose of substituting”.
Section 49 confirms that anything 19A manipulated is on the current President’s office (Job) and Current President (the person). Section 49 is nowhere giving a clue the president getting appointed to new president office. It simply saying he is continuing to be the president (Not New or Under 19A: no wording like that was used). Unlike appointing a minister under the current constitution, under 1978 Constitution or 19A or the new sections 49 have any capacity within them to appoint a new President. Supreme Court will interpret that Section 49 is confirming the change of status of the president’s office, not firing EP and reappointing. If the president loses his job for any reason, an EP election may be necessary to bring him back; otherwise it was explicit in wordings of reappointing him. 49A may not be described as transitional provision either, because it doesn’t sound one like that. It is just confirming that president did not lose his job by the status changes in his office (constitutional amendment).
Section 49 is clearly saying that President will continue to hold office. Otherwise Supreme Court interpretation of five year term limit will not apply, because 19A is not retrospective.
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Good Sense / August 20, 2018
As per article 125 of the Constitution the sole authority to interpret the same lies with the Supreme Court. NJ has voiced an opinion which may be accepted by the Supreme Court. However, it is clear that in the minds of almost everybody, the purpose of enacting the 19th amendment was not to create a new office of the President. The Constitutional pundit, Dr. JW, must respond to this and in his answer he must state as to why he drafted the amendment in this manner as his competence is now challenged. It is well known that in other circles, opinions were expressed that MR could again contest and the views of the Supreme Court would be sought but the argument for it was not known. The political angle to this letting off is to unite the JO and anti-government elements and create a new feeling among those concerned “Mahinda might come back”. Thus this is a great psychological operation.
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Agnos / August 20, 2018
NJ’s take on ‘retroactive’ application in his final paragraph is a sleight of hand.
“A law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention,” does not hold here.
The retroactive intent of the law is clear: “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.”
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Mallaiyuran / August 20, 2018
19A may not have the teeth to dismiss a 3rd term president. Because it is not retrospective to nullify an election already took place. But thorough accepting or rejecting new applications at election commission, it will prevent a 2nd term completed president to come to power again. The qualification rule commonly apply for all who are going submit their application for stand in the future elections, irreverent of whether they completed their 2nd term before 19A or after 19A.
But DR. NJ is taking a different route to qualify Chandrika and Old King. He says there were, though the word “President” was same before 19A and after 19A, but the Jobs were two different ones.
So he is saying because the new presidency is not the old presidency, the retrospective clause is needed. He depends on S49, calling it as transactional clause, to differentiate the two presidencies. He depend on “repealing S30” to conclude the Jan, 2015 Presidency. Further, he says in addition to term change in the “new S30” there are many areas of the presents’ authorities are abolished.
He feels current apothecary cannot be called as an earlier doctor, though may have some common functions. So the past presidents (the doctors) can apply for the present president (apothecary) job because the disqualification is only for the new job (apothecaries, but not for doctors). 19A should have disqualified the doctors (Past Presidents) disqualified explicitly, he opine.
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Mallaiyuran / August 20, 2018
Please read above “So he is saying because the new presidency is not the old presidency, the retrospective clause is needed. He depends on S49, calling it as transactional clause ”
as
“So he is saying because the new presidency is not the old presidency, the retrospective clause is needed. He depends on S49, calling it as transitional clause”
Those arguments are not correct.
1. Repealing paragraph of S30 of 19A clearly says it is not touching the Presidency, but only adjusting the paper constitution to change term. He unnecessary mixing the authority change took place somewhere into repealing S30. Section 30 was changed only to change the term. The authority can be changed without touching the S30. I accept his argument that it was a foul methods Jayampathy gang used at that point. For that alone he cannot use authority change took somewhere else to read the new section 30 as “Section 30 is creating a New Presidency, not associated with the Old Presidency” .
Say if the public servant’s salary was reduced for some reason will that affect his service time for other benefits? DR. NJ was too much on assuming repealing S30 fired the president. He thinks S30 is the only part of the constitution has the capability to create a president office so repealing it even temporally abolishes the head of the state.
2. S 49 explicitly says Presidents was never fired, but he was continuing.
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soma / August 20, 2018
Dear Nihal J
Thanks for presenting your opinion on the hottest issue on the table. A very timely contribution.
Away from the main theme, if our Constitution contains a phrase like
“To promote national reconciliation and reintegration”,
what does it really mean
when you say ‘RE’consiliation and ‘,RE’integration?
Does the constitution presupposes that we are quaraling and disintegrated already to use ‘RE’ ?
Something only appropriate for an election manifesto of a political party focusing on the post war situation I recon. (That too assuming it was a ‘civil’ war equating Tamils to LTTE, a preposterous assumption). On the other hand to say “To maintain unity and integrity” would have no such issue with me. Isn’t this most inappropriate for a supreme document like the Constitution OR is it my poor English that has led me to a misunderstanding? Please help me out of this connundrum.
–
Soma
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wannihami / August 24, 2018
Absolutely Soma, this is my pet-peeve too with the word reconciliation which implies that there was a war between Tamils and Sinhalese. For me the word reintegration is half okay in the sense that there was a physical segregation of the land with LTTE holding the Wanni, and there was little interaction between the Northern Tamils and the Sinhalese except via the government. Anyhow the words should have been something like committing to the strengthening of integration between different ethnicities, but for all I know all these words may have been put in place for a reason which might even be treason.
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Buwa / August 20, 2018
If MR can run again then its going to be an electoral slaughter for the UNP/SLFP. Nothing short of that.
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soma / August 20, 2018
Anything to keep UNP at bay. We are at the threshold of going Federal. MR is the only saviour out of this deadly possibility.
–
Soma
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Mallaiyuran / August 21, 2018
There are two different questions.
1.1.Will Old King run in the election for EP?
2.1.Can Old King run in the election?.
1.2. Old King will not run in the EP election. It is not that he doesn’t want EP, He doesn’t want Slap Party leadership, SLFP leadership, UPFA leadership, Joint Comedy Club leadership, Opposition Party leadership, Prime Minister position. He does not want to live in temple Tree House any more. It is not for him, he just do not want these for Old Brother Prince, Younger Brother Prince, Elder Brother Prince, Son Prince and for the Old Beauty Queen. So it closes all other talks of Old King.
2.2. Then, do we have to search for the answer to question number two? Yes; it is a theoretical question and a legal dilemma so it has to be resolved for, in future, any unscrupulous politician not to abuse it opportunistically for ones’ one sided advantage. Further Chandrika may like to come in too.
The answer is No, Neither Old King nor can Chandrika stand for EP election in future under 19A. As Dr.NJ said, S30 have to be only changed not repealed to change the term. Jayampathy Gang was careless enough to ignore S30 is the important provision establishes President. But beyond that, DR. NJ’s side points that are president is unusually appointed as constitutional minister and elsewhere his right & authority was curtailed are not counting. They can be done or not done without repealing S30. But if you look at the repealing clause, it is explicitly saying the purpose of repealing in only to change the term time. There was never the president was unseated and reseated. 1978 constitution or 19A does not have enough muscle elsewhere to do that without openly declaring that is what being done. There is no transitional clause, but only continuation clause. Chandrika can never dream of becoming an EP under 18A over powering the 19A by energized by DR. NJ’s argument. 19 A looks award but is not allowing 18A to overpower it.
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Upali / August 20, 2018
The 19th amendment embodies the peoples wish. Chandrika and Mahidha both in their manifestos promised to abolish the presidential system but did not do it. Above all Mahindha removed the restriction of two terms by buying over UNP MPs but the people thought otherwise and kicked him out. Courts will consider the intention of the franchise holders and not partisan legal arguments.
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soma / August 20, 2018
“Courts will consider the intention of the franchise holders and not partisan legal arguments.”
Really? I thought otherwise. That judges only consider logic of the legal arguments. How on earth you assumed that all judges are anti Rajapaksa? Most judges are capable of keeping their own political leanings aside and deliver on logic.
–
Soma
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Sarrij / August 22, 2018
S.
You must be joking.
There is no logic in S L legal system.
External influence does matter.Don’t fe fooled.
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wannihami / August 24, 2018
Really Upali you want to live in a country where the judges interpret law on whim dreaming up an intention? I hope they interpret and apply law on the logic of the argument.
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Hela / August 20, 2018
19A doesn’t address peoples’ wish. It only addresses Ranil W’s wishes together with that of TNA.
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Native Vedda / August 20, 2018
Helass
–
“19A doesn’t address peoples’ wish. It only addresses Ranil W’s wishes together with that of TNA.”
–
Did constitutions by weeping widow in 1972 or JR in 1978 or the crooks 18th Amendment in 2010 address people’s wishes?
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You have a serious consistency problem.
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soma / August 21, 2018
I think you have the same problem Native
https://youtu.be/_uMbAMKY4zU
–
Soma
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nalmen / August 20, 2018
did not MS ask for a 6 year term on the same lines but the supreme court rejected it
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K.Pillai / August 20, 2018
Nihal Jayawickrama ~ “Disqualifying Twice Elected Presidents – A Failed Endeavour?”
Should it read “…………………….. – Another Failed Endeavour?”.
Not quite sure at we are endeavoring to achieve.
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K.Pillai / August 21, 2018
Sorry, the last sentence should have been “Not quite sue as to what we are ….”.
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