When one reads the opinions expressed by lawyers, experts in English and so called political analysts it is clear that everybody is rationalizing his/her (not many her have expressed their opinions) convictions. I am not anyone of the above by any stretch of imagination, though I contribute to newspapers on topics that include politics. No editor considers me as a political analyst but for some reason or other some editors publish my articles. I sometimes write on philosophy but that does not make me a philosopher either. To most of my friends who read mainly the English newspapers my articles provide fun and to them Mahinda Rajapakse contesting for a third time is a big joke. I must admit that though I am not a lawyer, expert in English or a so called political analyst (in the case of lawyers and experts in English there are criteria to identify them, but not in the case of so called political analysts, who are identified as such by presenters of programmes in electronic media and interviewers in print media) I myself rationalize my convictions rather than coming to “rational” deductions. I have never been introduced by anybody as a political analyst or philosopher.
In my philosophy, one does not need to be a philosopher to have a philosophy as almost all of us have our own philosophies, even deductions are the results of induction, though Hume may have scoffed at induction. All “axioms” in logic are the results of induction as has been demonstrated in the case of if A=B and B=C, then A=C or even in the case of A=A. These inductions are made due to “Avidya” as in the case of knowledge in general.
Whether Mahinda Rajapakse could contest for the Presidency again seems to depend on the Article 31(2) of the constitution that 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”. This is only a sentence in English Language, and different people will interpret this sentence in different ways. The interpretations depend on many factors but hardly on rational arguments starting from scratch. If one wants Mahinda Rajapakse to contest again one would attempt to rationalize one’s wish and one who does not want to see Mahinda Rajapakse contesting again, for some reason or other, would argue to convince the others of his/her desire.
It appears that the government has decided to obtain an interpretation from the Supreme Court on the above article as well as may be on some other relevant articles. We all have to abide by the Supreme Court interpretation and if the interpretation goes against an individual who has been elected President twice contesting for Presidency for a third time then the government has ways of rectifying it and it is unlikely that even if Hakeem and Rishad get together with the UNP and the JVP the government would lose its two third majority in the Parliament.
The question at issue is whether the Article 32 (1) became operative on the day Mahinda Rajapakse was elected as the President for the second time. It is an eligibility condition that is applicable even to Chandrika Kumaratunga. Is Chandrika Kumaratunga eligible to contest for Presidency at a future Presidential election provided of course she continues to be alive at the time of election, in the light of the eighteenth amendment?
Chandrika Kumaratunga did not opt to contest a third time in 2005, and what was her position regarding contesting for a third time soon before the Presidential elections in that year. Who had the power to decide whether she was eligible to contest in 2005. It was finally the Supreme Court, had somebody gone before it against Chandrika Kumaratunga contesting at Presidential elections. The Supreme Court on its own most probably would not have given an interpretation as somebody has to move the courts to intervene. If Sarath Silva was the CJ he would not have expressed his opinion in public on the eligibility of Mahinda Rajapakse to contest Presidential elections a third time.
If Chandrika Kumaratunga in the absence of the eighteenth amendment decided to contest the Presidential elections in 2005, the commissioner of elections would have ruled out and even if she went before the Supreme Court against the decision of the commissioner she would have lost her case. However, could the commissioner of elections give a ruling before before 2005? He could not have done so as there was no issue for the commissioner to give a ruling.
As far as an individual is concerned it is the commissioner of elections who decides whether that particular individual is qualified to be elected as the President, whereas the Supreme Court could give an interpretation in general. I presume that the government would seek an interpretation in general from the Supreme Court and not on whether Mahinda Rajapakse could contest at the next Presidential elections.
As far as the nomination and eligibility of a person to contest at the Presidential elections, the following articles in the constitution are relevant.
31. (1) Any citizen who is qualified to be elected to the office of President may be nominated as a candidate for such office -
(a) by a recognized political party, or
(b) if he is or has been an elected member of the legislature, by any other political party or by an elector whose name has been entered in any register of electors.
92. Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless he is subject to any of the following disqualifications -
(a) if he has not attained the age of thirty years;
(b) if he is not qualified to be elected as a Member of Parliament under sub-paragraph (d), (e), (f) or (g) of paragraph (1) of Article 91 ;
(c) if he has been twice elected to the office of President by the People; and
(d) if he has been removed from the office of President under the provisions of sub-paragraph (e) of paragraph (2) of Article 38.
92 (c) is the most relevant in the present context and it has been repealed by Article 15 of the eighteenth amendment, which reads as:
15. Article 92 of the Constitution is hereby amended by the repeal of paragraph (c) of such Article.
Thus the commissioner of elections would have no difficulty in declaring that Mahinda Rajapakse is qualified to be elected as the president of the country at the next Presidential elections provided of course he seeks election. So far no voter or no political party has nominated him for Presidency for a third time and until such time the commissioner of elections does not have to decide on the eligibility of Mahinda Rajapakse. As at present no nominations have been made and Mahinda Rajapakse after all may decide not to contest at the next Presidential elections. A ruling has to be given by the commissioner of elections only when there is an issue and it is when there is an issue the relevant Articles of the constitution becomes operative. Until then it is not different from reading the horoscopes of unborn children (Noopan daruvange kendara belima). However, the government may move the Supreme Court to give an interpretation in general on the eligibility conditions of an individual who has been elected twice as the President contesting a third time at the Presidential elections.
Nalin De Silva
05-09-2014
