The Bar Association of Sri Lanka (BASL) is to move the Supreme Court today, in respect of President Mahinda Rajapaksa seeking a ruling on his third term bid.
Informed sources said that the objection would be based on the opinion expressed by law Professor Suri Ratnapala that the 18th Amendment to the Constitution could not have been enacted without the approval of the people at a referendum if it had the effect of retrospectively extinguishing the two term limit on the basis of which the 2010 presidential election was held.
President of the BASL Upul Jayasuriya replying to a communication from the Supreme Court that written submissions on the Presidents November 4, reference would be entertained until 3 p.m. today, has said that since the matter under reference was of grave national Importance, he would be obliged to know as to when the open hearing will be listed, permitting the associations counsel to be heard in person.
Ratnapala, a Professor of Law at the University of Queensland, Australia, Fellow of the Australian Academy of Law and Attorney at Law of the Supreme Court of Sri Lanka, has in his opinion conveyed to the BASL, said there was no doubt that President Rajapaksa was disqualified from seeking a third term during the period January 26, 2010 to September 9, 2010 when the Eighteenth Amendment became law.
The question of law was whether the disqualification was removed by the 18th Amendment. The answer, he has noted, depends on the further question whether the repeal of Article 31(2) and Article 92(c) operates in relation to those who are elected as President in the future or operates in relation to any President elected before or after the enactment of the Eighteenth Amendment.
“The 18th Amendment could not have been enacted without the approval of the people at a referendum if it had the effect of retrospectively extinguishing the two term limit on which the 2010 Presidential Election was held. The Bill to amend the 18th Amendment was considered by the Supreme Court in SC (Special Amendment Determination) No 1/2010. Justices Shirani Bandaranayake, K Sripavan, P. A. Ratnayake, S. I. Imam and R. K. S. Suresh Chandra held that the Bill could be enacted without a referendum. However, the Court did not consider the possibility of the retrospective operation of the Amendment, as that question was not raised in argument. Hence, the presumption of constitutionality that requires the 18th Amendment to be given prospective effect is unaffected by the courts judgment. It is fully consistent with the position that the 18th Amendment does not extinguish the disqualification of the incumbent President that was incurred before the Amendment was enacted.”
In terms of Article 129 (1) of the Constitution, President Rajapaksa on Thursday referred the following questions for determination by the Supreme Court.
(A) Whether in terms of Article 31 (3A)(a)(i) of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office would have any impediment after the expiration of four years from the date of commencement of my second term of office on November 19, 2010, to declare by Proclamation my intention of appealing to the people for a mandate to hold office as President by election for a further term.
(B) Whether in terms of the provisions of the Constitution as amended by the 18th Amendment, I as the incumbent President, serving my second term of office was functioning as such on the date the 18th Amendment was enacted would have any impediment to being elected for a further term of office.”
(Courtesy: The Island)