Video: Snap presidential election is unconstitutional – JVP tells EC

Thursday, October 23, 2014 - lankatruth.com

There is a dialogue in the society regarding a snap presidential election to be held despite two more years are left for such an election. The President too has directly said he would contest the presidential election to be held soon.

The JVP represented by its General Secretary Tilvin Silva, Members of Political Bureau Vijitha Herath and Sunil Handunneththi, Members of its Central Committee Attorneys at Law Sunil Watagala and Janaka Adhikari met the Commissioner of Elections at the Elections Secretariat today (23rd) to put forward the stand point of the JVP regarding the election. They handed over a letter to the Commissioner.

The letter states:

We have come to know that the incumbent president is preparing to hold a presidential election before his second term ends and immediately after four years of his term ends.

When the President makes a call to the people for a mandate to gain an excess period by being elected, it is you, as the Commissioner of Elections, who has the authority to hold a presidential election. However, we know that, according to the existing Constitution, holding such a presidential election is unconstitutional and illegal due to several reasons. As such, we request you to refrain from announcing such a presidential election.

We would like to bring to your notice the following to establish that a snap election is against the Constitution:

1. According to the Constitution the incumbent president cannot contest for another term (a third term) as he is disqualified to do so.

Article 31 (2) of the Constitution states ‘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 people.’

Also, article 92 (c) states any person ‘if he has been twice elected to the office of President by the people’ would not be qualified to be an elector ‘to the office of President’.

The disqualification has been mentioned in two instances to emphasize it. The presidential election was held on 26th January, 2010 when this Constitution was affective. As such, immediately after Mr. Mahinda Rajapaksa was elected by the people as the President on 26th January, 2010 for his second term, he gets disqualified to contest another presidential election or get elected as the president.

The aforesaid articles 31 (2) and 92 (c) have been removed by the 18th amendment adopted in Parliament on 9th September, 2010. However, the incumbent president had already become disqualified to get elected as president. When this amendment was adopted his disqualification had not been removed by the 18th amendment.

Specially, according to article 6 (3) of the interpretation ordinance act in Sri Lanka any laws would be effective to the future. It would not affect the past. It has been decided that a panel of nine Supreme Court Judges should interpret the articles in Constitution according to the Interpretation Ordinance Act in Sri Lanka.

According to this the disqualification for the incumbent president to contest for a third term has not been removed and hence his coming forward as a candidate for a presidential election is illegal.

2. There is no provision in the law to hold a presidential election in four years before the second term of six years of presidency has been completed.

According to article 30 (2) the president ‘shall hold office for a term of six years.’ Also, the 3rd amendment to the Constitution added a new article 31 (3a) which 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.

Later, by the 18th amendment the words ‘first term of office’ were amended to ‘current term of office’. However, 31 (3A) that was substituted in 3rd amendment states a person elected for the second term should “hold office for a term of six years commencing on such date in the year in which that election is held.’

As such, ‘Notwithstanding anything to the contrary in the preceding provisions of this Chapter’ in 31 (3A) doesn’t affect clause (c). The clause (c) is not above 31(3A) but after it. Also, this clause has not been amended. This means it is the existing law. According to this law the President has to complete his term of six years once he has been sworn in for his second term. He cannot end his term in 4 years and go for presidential election for another term according to the Constitution.

The incumbent president ignoring this clear legal state and attempting to contest another presidential election would be a violation of the Constitution and deciding to hold a presidential election before he completes his second term of six years too is unconstitutional.

As there is no provision in the Constitution to hold a presidential election before the six year second term of the incumbent president is completed and doing so is a violation of the Constitution and as the incumbent president cannot contest for a third term as he is already disqualified to do so and he has no opportunity to ask for a mandate for a third term, we request you not to hold a presidential election before the incumbent president completes his second term of six years.”