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Friday 29 August 2014

The third term of Mahinda Rajapakse as the President

It is clear by this time the opposition has realised that they have no ability to field a candidate who can win at the next Presidential elections whenever it is held. They have failed to find a so called common candidate and Ven. Maduluwawe Sobhitha Thera can campaign for abolition of executive President until the Presidential election is announced and then find that no political party is prepared to nominate the Thera or anybody else as the common candidate. There will be a number of candidates from the opposition and their best hope at the elections would be no candidate securing the fifty percent of the valid votes plus at least one more vote forcing the commissioner of elections to count the second preferences of the voters.

However, it is a remote possibility and the deciding factor at the elections would be the defeat of the LTTE and western interference in local politics. Navi Pillai and her successor would help Mahinda Rajapakse with their reports, and England in the two hundredth year since the 1815 English Sinhala Pact would realise that it cannot conquer the Sinhala mind. The fact that the elections would be held close to 2nd March 2015, two hundred years after the Sinhala English pact of March 1815, would help Mahinda Rajapakse who defeated Prabhakaran and the other terrorists who were supported by England and her ally US, and not Ranil Wickremesinghe who signed the ceasefire agreement with Prabhakaran at the insistence of those two countries through the Scandinavian countries.

It would not be a bad idea to hold the Presidential elections on the 2nd of March 2015 with history supporting Mahinda Rajapakse and the people teaching a good lesson to the English and their cohorts of Fridays, WGOs that include peace vendors and others. The election results will carry a message to Geneva where in March the United Nations Human Rights Council will be discussing Sri Lanka and not US where Blacks are being killed indiscriminately 150 years after the “end of the civil war”. There will be no “reconciliation” among the whites and the blacks in USA for another 150 years but in Sri Lanka Bodu Bala Sena (BBS), the so called extremist organisation has joined hands with a Hindu organisation and going by newspaper reports some Muslims have already complained to BBS against some other Muslim organisations that have prevented certain Muslims going to Mecca!

Ven. Sobhitha Thera and the team would fail with their slogans such as good governance, abolition of executive Presidency, as the people of this country know how the UNP governed the country under several leaders. Ranil Wickremesinghe has already shown his character in association with Soththi Upali and others, and Sajith Premadasa is only an also ran politician. It is not necessary to discuss the JVP and other parties, which would poll less than one million votes among themselves. Thus the commissioner of elections will be spared the agony of  counting the second preferences.

Under these circumstances when the Presidential elections are between a person who saved the country from the LTTE that was supported by England led western countries and a person who betrayed the country by signing CFA with the LTTE there is only one way left for the opposition. That is to try their luck at the Supreme Court by objecting to the candidature of Mahinda Rajapakse at the next Presidential elections. The first salvo has been already fired by none other than Sarath Silva, a former Chief Justice of the country, in the form of an interview given to Irida Lankadeepa, which has a management related to Ranil Wickremesinghe.  

I am neither a lawyer nor an expert in English but I know that Sarath Silva is not the only lawyer nor the only CJ this country has produced. Law is mainly about legal principles, interpretations and precedents, and even in Mathematics that uses natural languages to a minimum as much as possible there are different interpretations. Law depends on language and interpretations play a significant role in legal matters. I have some personal experience as I have resorted to litigation against the University of Colombo for dismissing me and most of the other universities for not appointing me to an academic position. I filed a case against the University of Colombo in the labour tribunal which decided that the University of Colombo should pay me a sum of Rs. Seven lacks even though I had lost about 5 million rupees in wages and other benefits as a result of being on extended sabbatical leave for more than ten years. The university appealed to the High court that decided that not a single cent be paid and decided that I was guilty of all the charges. Then I appealed to the Supreme Court and a three member bench presided over by Sarath Silva CJ decided that the University should pay me Rs. Five lacks. To this day I do not understand the rationale behind these judgments, and five lacks is not even the arithmetical mean  of seven lacks and zero.  I do not think that Mr. S. L. Gunasekera who appeared for me free of charge  from the labour tribunal to the Supreme Court understands the judgments either. As there is no court of law above the Supreme Court the University had to abide by the latter decision and as a result I lost about 4.5 million rupees. 

When western Physics is not objective one would not expect Roman Dutch or any other law to be objective. Three different courts of law gave three different judgments but we are forced to go to courts of law seeking justice. It was Wittgenstein who said that Problems in Philosophy are problems of language. It appears that Law thrives on problems of language. However, politics has a way of dealing with language, where intuition plays a big role. The political intuition of  Mahinda Rajapakse who himself is a lawyer, knows how to deal with problems of language associated with law. It is the legislators who know the intention of passing of laws and not the interpreters who are confined to language and convictions.   

Sarath Silva in his interview seems to have given the impression that he depends on two interpretations, which needless to say are subjective. In law as it often happens lawyers first come to conclusions and then try to justify the conclusions interpreting the law accordingly. In general we do not come to conclusions by rational arguments but almost always rationalize our convictions, and I am no exception.

According to Sarath Silva, Article 31 (2) of the constitution that says “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” has already disqualified Mahinda Rajapakse. It appears that Sarath Silva’s argument is that Mahinda Rajapakse was disqualified to contest a third time the day he was elected to the office of the President, the second time. However, the above article does not say categorically that a person who has been elected twice to the post of President is disqualified to be elected to that post again. It could be said that the article 31 (2) becomes operative only at the point when the person who has been elected twice decides to contest Presidential elections, and not before. That was never to come as long as the Article was in the constitution, and now the article has been repealed by the eighteenth amendment. Mahinda Rajapakse is now not bound by a repealed article, and legal intricacies on retrospective validations are not the order of the day. The second interpretation that Sarath Silva banks is on Article  31 (3a) (i)  that states “Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his first term of office, by Proclamation, declare his intention of appealing to the People for a mandate to hold office, by election, for a further term.”   The eighteenth amendment replaced the words fist term by the words current term, and Sarath Silva is apparently of the opinion that current means first. However, the eighteenth amendment has no upper limit on the number of terms a person could be elected, provided of course the people elect him/her, and in the light of the eighteenth amendment current does not appear to mean only the first. Let us await the decision of the Supreme Court if a voter goes before it based on Sarath Silva’s interpretations, but more importantly on Mahinda Rajapakse’s political intuition that would tell him what action he should take in view of the interpretations.

Nalin De Silva