The
unexpected resurrection of former president Mahinda Rajapaksa's hope to be a
third term president of the country has taken the centre stage of political
debate. It also highlights the vulnerability of the rule of law. One of
the memorable phrases of the Lessons Learnt and Reconciliation Commission
appointed by the former president to cope with the international demand for
accountability for war-time violations of human rights was that the Rule of Law
rather than the Rule of Men should prevail if the tragedies of the past were
not to repeat themselves. But to politicians whose quest for power is
unlimited such principles of democratic governance may be dispensed with as and
when the need arises.
The
possible resurfacing of the former president as a presidential candidate occurs
at a time when there is lack of clarity on both sides of the political divide
with regard to who might be their candidates at the forthcoming presidential
elections due no later than November 2019. On the government side there
is no definite indication as yet whether it is going to be President Maitripala
Sirisena again who will be the common candidate, as he was at the presidential
election of 2015, or Prime Minister Ranil Wickremesinghe who has been the UNP's
main aspirant for the post since the presidential election of 1999. This
issue of who will be the next presidential candidate has been left unresolved
from the very beginning of the government's term of office.
It is this
unresolved issue of who will be the next president that has been at the root of
the problem that has prevented the government from acting as a cohesive
government with a 2/3 majority in parliament. As the time for elections
comes nearer, it is a cause for frustration on the part of the opposition that
they are unable to capitalize on this failure of the government, and its
inability to act powerfully to deliver the necessary benefits and economic
development to the electorate to obtain their vote at elections. The
opposition showed up this weakness of the government at the local government
elections earlier this year when they trounced the government parties in most
parts of the country. However, the opposition too is beset with the same
problem as the government with regard to deciding who might be their
presidential candidate.
DRAFTERS
INTENT
With his
charisma and track record as a decisive leader, former president Rajapaksa
continues to be the undisputed leader of the opposition that has been seeking
to form an alternative government in the country from the time of their
unexpected defeat in 2015. Other presidential aspirants have been
repeatedly echoing each other in saying it is left to the former president to
make his decision, and that they await his decision which will be made at the
correct time. The challenge for the opposition is to identity a candidate
who will unify them and not cause fragmentation. The signs of such
potential fragmentation have been evident in the harsh comments made by
different members of the opposition against the leading aspirants from amongst
their ranks.
In these
circumstances, with presidential elections a maximum of less than 16 months
away, the allure of former president Mahinda Rajapaksa as the opposition
candidate has grown. The problem, however, is that the former president
is prevented by law from becoming a third term president. At least that
has been the belief so far. The 19th Amendment to the
constitution prohibits anyone who has been elected twice to the office of
president to contest again to be president for a third time. The 19th Amendment,
which was passed in 2015, repealed the 18thAmendment passed in 2010,
which itself had repealed the provision in the constitution of 1978 that set a
two-term limit on the presidency. The drafters of the constitution had
put in the two term limit being mindful of the possible abuses that could come
if a president stayed too long in power and built up a coterie around him who
would monopolise power. It was in terms of the 18th Amendment
that former president Rajapaksa cut short his second term by two years to call
for an early presidential election and make his third bid for presidential
office.
The 18th Amendment
to the constitution, which was passed as an urgent bill in Parliament within a
week, without time for adequate debate either in parliament or in the country, represents
one of the lowest points of the country's adherence to principles of
constitutionalism. The constitution represents the supreme law of the
country. It should not be changed at the whim and fancy or deep and dark
desire of those in power to further their own interests. The passage of
the 18th Amendment was possible because former president
Rajapaksa and his government had accumulated such enormous powers that all
other institutions, including the judiciary, came under severe pressure. The
separation of powers, and the system of checks and balances, needs to be
protected at all costs if democracy is to prevail.
POSITIVE
CONSEQUENCES
Members of
the opposition and their legal advisors are now claiming that the 19th Amendment
to the constitution does not prevent former president Rajapaksa from contesting
the presidency a third time. They argue that prohibition of the 19th Amendment
only applies to those who are elected from the time of the passage of the 19th Amendment
and it does not apply retrospectively to those who were elected twice in the
past. The final verdict on this needs to be given by the judiciary who
will also be considering the intent of those who drafted the law in
question. The intention of the framers of the 19th Amendment
may be discerned in their statements made in and outside parliament at the time
of the passage of the law. When there is doubt the courts will refer to
the intent of the framers of the law.
The
stability of a society and the trust that can be placed on its institutions
depends on the Rule of Law being upheld as against the rule of men which will
vary from time to time according to their whims and fancies. Whether it
is with regard to the security of business investments or a sustainable
solution to the ethnic conflict, there is a need for stability, in which
agreements made one day are not overturned the next day depending on the will
of one person or one party. The importance of the judiciary in upholding
the Rule of Law and constitution can be seen in the context of the debate that
is opening up regarding the possibility of former president Rajapaksa
contesting forthcoming presidential election and becoming a third term
president.
The re-emergence of the
candidacy of former president Rajapaksa may also serve to galvanise the
government to resolve its own issues with regard to facing the oncoming
presidential election. The sooner this is done the better. What the
country needs is unified governance in which there is cohesive decisionmaking
but with the Rule of Law being upheld. In 2015, the combination of President
Sirisena and the parties that now constitute the government were sufficient to
win that election. The government parties joined forces because they felt
that they could not individually take on the former president and the political
machinery that he had at his disposal. When there is no clear choice of
candidate for the government parties at the present time, the tried and tested
formula might be the best to adopt, given the present absence of viable
alternatives