The Danger Of A Third Term And How To Prevent It

| by Laksiri Fernando
The precedent against a third term for any president grew out of the same determination.a
third term [is] most dangerous to the peoples liberties. ! "obert #lphonso Taft
$ %ctober &'( )*&+( ,ydney( ,ri Lanka -uardian. The danger of allowing a third term for the
incumbent /resident( 0ahinda "a1apaksa( cannot be underestimated. 2t would be the litmus test
whether ,ri Lanka completely goes in the authoritarian direction or whether it retains the main
thrust of democratic go3ernance. 2f a third term can be pre3ented( it sure can( then it would be
the resurrection of democracy in ,ri Lanka which is at present stifled under a family rule.
2t is not my normal habit to say( 42 said so. 5ut this is such an important issue to clarify the
different positions e6pressed in relation to the increasingly contro3ersial third term( some
retrospection might be important. 2n my article titled 7/resident "a1apaksa has no /eoples
0andate or 0oral "ight to 8ontest #gain $The ,ri Lanka -uardian( )& #pril )*&+. 2 argued
the following in the initial paragraph.
79hen /resident 0ahinda "a1apaksa contested for the /residency in :anuary )*&* for the
second time( o3erwhelming assumption of the people who 3oted or campaign for him was that
it was his last term. That was the constitutional position as well as the tradition of this country(
like in many other democratic countries( since &;<= when the presidential system was
inaugurated. The two term limitation was ingrained in the 8onstitution.
%b3iously my argument was primarily 4moral and political one and still remains the same.
>owe3er( in summarising the arguments at the end( 2 also said that it should be challenged e3en
legally in courts of law as follows.
7The purpose of this article howe3er is to argue the point as it has done that /resident
"a1apaksa doesnt ha3e a peoples mandate or a moral right to contest again and his candidacy(
potential or otherwise( should be challenged morally( politically and e3en legally in the courts
of law. $/resent emphasis..
0orality undoubtedly is the basis of law or should be the case. 2n most languages( the
etymology of the word Law connects up with the word :ust or :us. 2n ancient ,outh #sia
including ,ri Lanka( ?hammathath $moral@natural law. was considered the basis of Aasathath
$law of the king..
Former 8hief :ustice ,arath B. ,il3a( in my opinion( has come up with a strong legal argument
against the third term. 9hate3er the mistakes on his part in the past( his arguments cannot
easily be disregarded in public debate or in law courts.
8onstitutional /osition
#ny careful reading of the #rticle C& $).( before the &=th #mendment( shows that when
/resident "a1apaksa was elected for the second time he became disDualified for a third term or
any other term. 2t e6plicitly said 7Bo person who has been twice elected to the office of
/resident by the /eople shall be Dualified thereafter to be elected to such office by the /eople.
The words 4twice elected and 4thereafter are important.
#lthough that article became abrogated with the &=th #mendment( his disDualification did not
become nullified since law cannot apply in retrospect unless e6plicitly decreed. This is not only
an international principle as ?r /rathibha 0ahanamahewa has erroneously stated today $?aily
Bews( &' %ctober )*&+. but a domestic principle ingrained in our legal system. %therwise the
legal system can become easily arbitrary. ,upremacy of parliament does not automatically alter
this principle. 2n other words( the amendment of #rticle C& $C. did not alter the disDualification
placed on the incumbent /resident. There is opinion e6pressed that in the absence of such an
e6plicit reference in the #mendment what is rele3ant is the 4intention of the #mendment. That
definitely can be the case. This also means the intention of the 8onstitution as well.
&=th #mendment undoubtedly is one of the biEarre constitutional amendments. #s 2 stated in
my pre3ious article 72t was a ma1or mistake by ?r ,hirani 5andaranayke( as the 8hief :ustice(
to allow the bill to ha3e passage only through )@C ma1ority without a referendum and without
ha3ing a full discussion in the country. %n a similar occasion( late /ran 8hopra( stated the
following and it is worth Duoting.
The central issues in the debate arises from political philosophy rather than constitutional law.
8an a 8onstitution pro3ide for its own sub3ersionF >ow far can a 8onstitution be amended and
still retain its original intents and purposesF
The original &;<= 8onstitution itself is not an admirable democratic constitution. #mong
se3eral ad3erse amendments( the &=th #mendment undoubtedly is the most treacherous e3en
sub3erting the basic safeguards of the original constitution. There is a fundamental
contradiction between the original 8onstitution and the &=th #mendment. 9hat is primary is
not the intentions of the &=th #mendment but the intentions of the original 8onstitution. #ny
1udicial re3iew should take this matter into account. 2n &;;C( the architect of the 8onstitution(
:" :ayewardene himself e6pressed the 3iew that the si6 year term period should ha3e been
limited to four or fi3e years. The remo3al of the term limit ob3iously is beyond the intentions
of the original drafters.
This does not mean that the people or their law makers cannot alter the original intentions of a
constitution( but it should be done through a peoples mandate i.e. a referendum under the
present 8onstitution. /eople in ,ri Lanka ha3e 3oted for go3ernments who promised to abolish
the presidential system three times in &;;+( )*** and )**'. Their intention is clear. The
intention of those who passed the &=th #mendment howe3er is not clear.
,ince the promulgation of the &=th #mendment( three constituent partners of the G/F#( the
8ommunist /arty $8/.( the Lanka ,ama ,ama1a /arty $L,,/. and the ,ri Lanka 0uslim
8ongress $,L08. ha3e e6pressed their reser3ations or opposition. The #mendment was
proposed as an urgent bill in /arliament and rushed through a two thirds ma1ority. #s a result(
the members of parliament or the public in general had e6tremely little time to discuss the full
implications of the #mendment. 9ithin the G/F# circles it was kept a secret until the ele3enth
hour. The ,L08 -eneral ,ecretary and 0ember of /arliament( 0.T. >asen #li( last year said
$8eylon Today( )< #ugust )*&C. 72n fact( 2 can openly say( 2 did not support it. 2 was forced to
support it. This is a terrible indictment of the way politics is conducted within the G/F#.
/rathibha 0ahanamahewa in his inter3iew today to the ?aily Bews $gi3ing perhaps his legal
ad3ice to the go3ernment as the 4independent >uman "ights 8ommissionerH. has e6pressed
the 3iew that without waiting anyone to challenge the Duestion after the nominations( for
e6ample former 8: ,arath B. ,il3a( the matter should be referred to the ,upreme 8ourt
beforehand. That perhaps be ad3antages to the go3ernment at least seemingly. 2f that is referred
to the ,8( howe3er( then the people should also petition the ,upreme 8ourt that the pre3ious
decision to allow the passage of the &=th #mendment without a referendum and only with a )@C
ma1ority also should be re3iewed as it fundamentally contradicts the 2ntent of the &;<=
8onstitution.
>owe3er it is not sufficient if the third term is challenged only as a legal issue.
/olitical 8hallenge
The weaknesses of the effort to challenge the third term only through legal terms in my opinion
are mainly two fold. First and foremost( the issue is a moral and a political one and should be
considered that way in educating the people of the political dangers of a third term of a
/resident whoe3er is the person. ,econd( there is no guarantee at all that the legal battle on the
matter can be won easily gi3en the submissi3e nature of the 1udiciary and other legal
complications in3ol3ed in the matter. Bo person or e3en a former 8hief :ustice could gi3e such
a guarantee. The legal battle should be considered part of the educational and the political
process. #t least there should be a /lan 5.
#ssuming that the /resident "a1apaksa contests or allowed to contest a third term( what might
be most important is to challenge the third term at the presidential elections. This is where the
:I/s e6pressed policy appears to be defecti3e and an agreement and consensus between
different political parties and ci3il society organiEations in the opposition are important. The
:I/ has e6pressed the 3iew that it would strongly challenge the nominations of /resident
"a1apaksa in courts and if fails they would boycott the presidential elections declaring it as
illegal $8olombo /age( + %ctober )*&+.. This is a repetition of their policy in &;== which was
underlined by their insurrectionary policy at that time.
2t is important that all opposition parties work within the a3ailable democratic framework and
desist from any e6traJparliamentary de3iations. /articularly in educating people on the danger
of a third term( the :I/ has a ma1or role to play as it has already begun. >owe3er( the
utiliEation of that kind of a campaign to de3iate from the democratic and peaceful path would
allow the incumbent go3ernment or any go3ernment to suppress that kind of a resistance. 2t is
important that the :I/ remains within the democratic path.
9hat might be necessary to pre3ent a third term for the incumbent /resident 0ahinda
"a1apaksa and his family rule is a strong and a common candidate from the opposition on a
democratic and a progressi3e platform. 2t is ob3ious that the main opposition party( the GB/(
has a ma1or leadership role to play in this respect. The pre3ention of the family rule( the
attempted third term and the abolition of the e6ecuti3e presidential system are closely linked.
9hile the Bational 0o3ement for ,ocial :ustice $B0,:. has played a decisi3e role in making
the people or the political parties understand the need for the abolition of the presidential
system( it is ob3ious that a single issue is not sufficient to make a decisi3e democratic change
in the country.
# common platform for a common candidate could constitute the following.
K ,topping family rule for a third term.
K #bolition of the e6ecuti3e presidential system.
K "estoration of rule of law.
K /roJpoor de3elopment policy.
K ?e3elopment without corruption and political discrimination.
K /reser3ation of Free Lducation and >ealth 8are.
K "einstatement of the &<th #mendment and an independent public and police ser3ice.
K 2mplementation of the &Cth #mendment with cooperation and through dialogue.
K 2ndependent and nonJaligned foreign policy.
K /romotion and protection of human rights of all communities and socially disad3antaged
groups.
L3en if there is no possibility for all opposition parties to agree upon a common platform such
as abo3e( the main opposition party the GB/ could incorporate such a program to seek
common support. #ssuming that the TB# is a willing partner for a common
platform@candidate( the :I/ should be able to support a common candidate on the basis of proJ
poor polices and the preser3ation of free education and health care.
2 still maintain that the ideal common candidate( as stated twice before( could be Maru
:ayasuriya( preferably resigning from the GB/ to symboliEe his neutrality among the
opposition parties or forces. >e should immediately dissol3e parliament to hold elections for a
new go3ernment to be formed ob3iously under the GB/ leader( "anil 9ickremasinghe. 2f the
GB/ leaders pledge to abolish the e6ecuti3e presidential system is reliable or to be achie3ed
without delay( that is the consistent and the best strategy. This could also be the B0:,s
condition to support a common candidate from the GB/ to achie3e its main ob1ecti3e in
abolishing the e6ecuti3e presidential system.