No constitutional reprieve for a Rajapaksa Fourth Innings

Rajan Philips-August 25, 2018, 7:52 pm 

The twice elected and once defeated former President Mahinda Rajapaksa is apparently being urged by his acolytes to don his pads and get ready for a fourth presidential innings. In his first innings, he got outside help to force some of the opposing players from taking part in the game. For his second innings, his opponents hired a player who was known for his heroics in a different sport but knew nothing about presidential cricket. Rajapaksa hit his no-ball out of the stadium and then locked him up for daring. When the former President tried to play an illegitimate third innings, the people said enough is enough, clean bowled him and sent him back to the pavilion. He went home instead, after meeting the Vice-Captain of the winning team in the pavilion and allegedly striking a deal unbeknownst to the winning Captain.

Everyone thought Rajapaksa’s presidential cricket days were over, but he came back to rouse his supporters and to make sure that he or anyone else in his camp will not be charged for ball tampering and/or match fixing payoffs. He and his team-brothers managed to stall or derail all inquiries, not without help from the twin-captains of the winning team. Now the Rajapaksa cronies apparently think they have found a constitutional loophole to make Mahinda Rajapaksa bat again for a fourth presidential innings. If their interpretation is upheld by the umpires in chief, provided too many of them do not recuse themselves (it may be some of them may have to), and if MR is allowed to bat and he bats well, straight bat or cross bat, in his fourth innings, he could even get to play a fifth innings.

No. Stranger things have not happened even in Sri Lanka. To his credit, the former President sees not only the strangeness but also the absurdity of this presidential re-election ploy. He has reportedly tried to laugh this off: "Mama ovate usaviwala avidinna kemethi nehe(I don’t want to roam the Courts for that purpose)." But his cronies would have none of it, and they have plans up their sleeves and even their slacks, if needed. The former President doesn’t have to go to Court, they have assured him. They will just get a political hack to ask a District Court as to who does the two-term limits on presidential office reinstated by the 19th Amendment (after it was repealed by the 18th Amendment) apply? Does it apply to those who have held two terms in office before 2015, or will it only apply to the one who got elected in January 2015, and others to be elected in future elections? The question will be rapidly tossed over to the apex court. That is the plan, but let me digress.

Lessons from America

The strangest things are happening in the United States of America, the world’s oldest constitutional democracy. The Trump presidency is like no other and the American system is being exposed in the most unsavoury manner in its efforts to rein in an unruly incumbent, who is already being identified as "Individual-1" in criminal court proceedings and as unindicted co-conspirator in the media. Trump is currently enjoying immunity under a protocol, not a specific constitutional privilege, that a sitting president should not be indicted. Where all this will ultimately end is a novelist’s mystery, even though the Trump exposures have exhausted their capacity to shock anyone anymore. Every worst thing has become wholly predictable.

What is also becoming clear is that almost all of Trump’s legal troubles are attributable to the deviant path he took from business to politics. The traditional avenues of a political party in a democratic electoral process provide their own checks and balances to ensure that all the campaign steps are taken in conformance with the law. Trump, as an outsider, shunned the traditional party resources and relied on his opaque business organization, his shady business friends, and on Russian tentacles, to market himself with gusto and to invent and pile dirt on his opponent. The chickens, if not crimes, are slowly coming home to roost.

I would venture two observations from a Sri Lankan standpoint. First, the Trump saga illustrates the absence of a parliamentary forum that enables America’s elected chief executive to get away with anything and everything without concurrent accountability. A government’s constant exposure and accountability to the opposition in parliament is the best check against government overreach and abuse of power. This is not possible in the US in the same way as it works in a parliamentary system. The Congress is supposed to provide the first check against the executive and historically it has worked even when the same political party controlled the Administration and the Congress. It is not so now with a Republican President and a Republican Congress. The Republican Party of Abraham Lincoln is genuflecting before an "uncouth property developer with a huge chip on his shoulder" (to borrow the apt description of Trump by Ian Buruma, the Editor of The New York Review) for the sole reason of not wanting to upset Trump’s touchy base. Trump will enjoy his current freeride with the Congress until the majority in Congress changes hands in the November midterm election, or he is voted out of office in the 2020 presidential election.

My second observation is that Trump’s freeride is only in appearance, for the Trump presidency has been thrown into a tortuous confusion thanks in all parts due to the American judiciary and law enforcement agencies. Historically blamed for its contributions to the entrenchment of racial segregation and discriminations against African Americans, the judiciary has played a very activist role in pulling down racial barriers and advancing civil rights over the last 65 years. Zealous prosecutors in different states have gone after and destroyed root and branch the remnants of the notorious Ku Klux Klan of white supremacists. Quite removed from the political battles over Supreme Court nominations, American judges, attorney generals and investigators at every level have provided the biggest roadblocks to Trump’s nasty schemes.

From Sally Yates, the indomitable former acting Attorney General who declared Trump Administration’s first immigration order targeting Muslims unconstitutional, to Washington District Judge Emmet G. Sullivan who threatened to hold the current US Attorney General (Jeff Sessions) and other government officials in contempt for trying to spirit out of the country two immigrant plaintiffs in a lawsuit before him (the Trump government had to fly back the two plaintiffs after flying them to Central America) - the men and women of the American judiciary and law enforcement agencies are professionally and conscientiously pushing back against Trump’s presidential excesses and are fearlessly probing into his pre-presidential transgressions.

The two American experiences – political and judicial, should indicate that in Sri Lanka every effort is necessary to protect our parliamentary traditions from deteriorating further and that our judicial and law enforcement agencies do not require any political nod or blessing to do their job and bring to fruition the multiple cases involving very important persons. Sri Lanka’s experience in democracy is intertwined with elected bodies – first the State Council and local bodies, later the Parliament, and now extended to Provincial Councils. Without the parliament democracy in Sri Lanka has no meaning. Without parliament and its working traditions in Sri Lanka, the negative effects of the presidential system would have been far worse. JR Jayewardene had no option but try to "marry the two systems", as he said, when he transformed himself from Prime Minister to President.

For the most part, the marriage has been a one sided affair with the executive calling the shots and parliament providing the legislative rubber stamp. The 19th Amendment to the Constitution was supposed to rebalance the marriage after the 18th Amendment had strengthened the presidency even more by removing the term limits on an individual president. And now it transpires, rather it is being claimed, that 19A may not have quite done what everyone thought it was doing.

Constitutional Semantics

Legal opinions are being floated pro bono, both for and against the claim that the 19A’s term limit does not apply to Mahinda Rajapaksa. In my understanding, Dr. Nihal Jayawickrama grounds his assertion (The Sunday Island, August 19) that the term limit in 19A does not apply to Mahinda Rajapaksa (or Chandrika Kumaratunga, who is not craving for any more terms anyway), on a number of considerations. First, 19A has created a vastly different, if not totally new, office of the president from the one created by the 1978 Constitution. This apparently is evident from the differences in presidential powers before and after 19A, and the transitional provisions to address the term in office of the incumbent President. Second, because of the pre and post 19A differences in the presidency, 19A’s term limits are applicable only to the current and future presidents and not to those who have held office before 19A. Third, there was no such term limit, or "disqualification", "immediately prior to the 19th Amendment;" therefore, someone who had been elected twice as President before 19A could not be subjected to the new disqualification. And fourth, as 19A does not clearly provide for retrospective application of the term limit, or disqualification, "to citizens who had previously been twice elected to the former (since abolished) office of President," it does not apply to the "two surviving former Presidents, Mrs Chandrika Kumaratunga and Mr Mahinda Rajapaksa."

Although it may not have been the intention behind this interpretation, it certainly comes across as having the effect of special pleading for Mahinda Rajapaksa in the current political context. At least from a political standpoint, it seems disingenuous to specially emphasize that there was no term limit "immediately" before 19A without equally acknowledging that the term limit was there from 1978 until it was removed by 18A in 2010. Technically, there was no term limit between 2010 and 2015 while 18A was in effect, but does it matter at all for constitutional interpretation that both our surviving former presidents were elected twice when the two-term limitation was in force. One of them, Chandrika Kumaratunga, served both her terms while that provision was in effect and is not known to have entertained ideas about a third term.

The entertainment came with her successor, Mahinda Rajapaksa, who after being elected for a second term masterminded the 18th Amendment to get rid of the term limit. The Supreme Court at that time and in its wisdom ruled that only a two thirds majority in parliament (and not a referendum) was needed to pass 18A, and Mahinda Rajapaksa had his way. But the people exercised their own wisdom in the only presidential election that was held during the short life of the 18th Amendment, in January 2015. Mahinda Rajapaksa contesting for a third time was defeated, and Maithripala Sirisena promising to rescind the 18th Amendment and restore the term limit was elected. The 19th Amendment flowed directly from that election and its verdict. If it is now suggested that 19A is not appropriately worded to have the meaning everyone was clear about, where is the recourse to honour what the people voted for in 2015?

There will be no need for any recourse if the legal luminaries surrounding Mahinda Rajapaksa drop the matter as he himself laughingly indicated in his first gut reaction to their proposition. Even if the matter were to reach the Supreme Court, one would like to think that the court would give some weight to the sequence of political events between 2010 and 2015 and not permit itself to be entirely swayed by the semantics of the constitutional text.

We can also look at it another way. It seems to me that it is a mischaracterization to call the two-term limit as imposing a "disqualification" on specific persons. Until the 18th Amendment, the presidential term limit was not viewed as a ‘disqualification’, and no citizen could have challenged it as a fundamental rights question. That status quo is now restored and it should apply to all Sri Lankan citizens including dual citizens. And isn’t it being anomalous to suggest that there should be two exceptions out of twenty million Sri Lankans: Chandrika Kumaratunga and Mahinda Rajapaksa? Chandrika Kumaratunga is not interested in any exception. Wouldn’t it be silly for Mahinda Rajapaksa, or anyone else on his behalf, to make a claim for such an exception?