POWER STRUGGLE BEHIND CORRIDORS OF POWER! | Daily News

POWER STRUGGLE BEHIND CORRIDORS OF POWER!

A live debate is vibrating within the ‘corridors of power’, to ascertain whether the former two Presidents are entitled to enter the next presidential race once again, for the third time.

It was the considered view till recently that the former President Mahinda Rajapaksa who has served two terms earlier is NOT ELIGIBLE for contesting for the third term in accordance with the clauses of Article (30) of the present Constitution. In simple term, it says that “No person who has been twice elected to the office of the President shall be qualified thereafter to be elected to such office by the people.”

However, the new position that the former two Presidents can make a presidential bid again, for the third time, has come up mainly due to a legal interpretation analyzed by Prof. G.L. Peiris who himself is a Professor of Law and also a Minister of Constitutional Affairs in the Chandrika Bandaranaike Government. Before making this statement, it is believed that Prof. G. L. Peiris and Joint Opposition stalwarts have even consulted some legal eagles on this issue. Professor of Law, G.L. Peiris is of the opinion that the said 19th Amendment, which came into the statute book under the present government, does not impose a bar for re-election on the former two Presidents who have completed two terms.

WHAT IS PROSPECTIVE?

His argument is based on the fact that the 19th Amendment is prospective and NOT a Retrospective piece of legislation. It means, that the restrictions implied by the 19th Amendment cover only to the present incumbent of the office and to those to be elected thereafter. In fact, it was reported in the print media that John Seneviratne, formerly Labour Minister and Senior Attorney-at-Law, has also endorsed this view.

A law is said to be prospective (as opposed to retrospective) when it is applicable only to cases which shall arise after its enactment. Another shade of opinion, strengthening this argument says that a new law ought to be prospective and not retrospective in its operation. The meaning of the word perspective with reference to statues shows that it is concerned with or applying the laws in future or at least from the date of commencement of the statute.

WHAT IS RETROSPECTIVE?

The word retrospective is derived from Latin retrospectare, it means looking back. In short, it is a look back at events that have taken place earlier or works that were produced in the past. The Oxford Dictionary of Law defines retrospective or retroactive legislation as “legislation that operates on matters taking place before its enactment, e.g. by penalizing conduct that was lawful when it occurred.”

This word is usually applied to those acts of the legislature, which are enacted to operate upon some subject, contract or crime which existed before the passage of new legislation. These laws are also coming under the definition EX PAST FACTO LAWS.

USA: In the United States of America, Congress is banned from passing or giving authority for ex past facto laws by clause 3 of Article 01, Section 9 of the United States Constitution. This prohibition is not restricted to the Congress alone; it has been extended to the states also.

This prohibition is endorsed in clause 1 of Article 1, Section-10. Thomas Jefferson condemned them as “equally unjust in civil as in criminal matters”.

Constitutional authorities in the United States and elsewhere hold the view that this is one of the relatively few restrictions that the United States Constitution has made to both the power of the federal and state governments before the enactment of the 14th Amendment. The history of constitutional law in the US refers to several decided cases on this matter, giving several shades of opinion.

Further Article 25 of the American Declaration of the Rights & Duties of Man also says that “No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing laws. THE RIGHT TO BE TRIED IN ACCORDANCE WITH THE PROVISIONS OF PRE-EXISTING LAWS IS REITERATED IN ARTICLE 26.

European Convention on Human Rights: For all practical purposes, almost all European States (Except Belarus), including European Union and European Economic Area States, are strictly bound by the European Convention on Human Rights.

United Kingdom: In the United Kingdom, the situation is different. Here, ex past facto laws are frowned upon but are permitted by virtue of the doctrine of parliamentary supremacy. When you go through the historical developments in the UK, all acts of Parliament before 1793 were ex post facto legislation. However, it is pointed out that this situation was rectified by the Act of Parliament (Commencement) Act of 1793.

The War Crimes Act of 1991, enacted an ex post facto jurisdiction over war crimes committed during the 2nd World War, due to public opinion. Another significant example of a case which highlights the doctrine of parliamentary superiority in action is Burmah Oil Company Ltd v Lord Advocate, which retrospectively amended the law on compensation resulting from scorched earth actions in Burma during the war. Here, in this particular instance, the War Damage Act of 1965, with retrospective effect surpassed the decision of the courts. Further, more recently the Police Detention and Bail Act of 2011 was brought forward to overrode a sensational court judgement, resulting from an error in the drafting of the Police and Criminal Evidence Act of 1984, that would potentially have invalidated thousands of criminal convictions.

To validate another ex post facto law, the House of Commons gave consent to another act, known as the Criminal Justice Act of 2003. According to this piece of legislation people who have been acquitted earlier can be retried again if there is “new, compelling, and substantial evidence to prove that the acquitted was guilty. However, there had been continuous criticisms against this piece of legislation. However, retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory.

South Africa: Section 35(3) of the South African Bill of Rights Prohibits ex-post facto laws. Further, it also prohibits retroactive increases of criminal punishments.

Norway: Norway has also taken the same position. Article 97 of the Norwegian constitution has affirmed this freedom.

India: Indian Constitution, has underlined the following principle through Article (20-1), although it has not used the expression-ex post facto.

Article 20-1 says that “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, NOR be subjected to a penalty greater than that which have been inflicted under the law in force at the time of commission of the offence.

Russia, Brazil, Canada, Germany, Indonesia, Iran, Republic of Ireland, Italy, Japan, Mexico, Netherlands, New Zealand, Finland, France, Pakistan and several other countries have separated from applying ex post facto legislation.

The conclusion that we can derive from all these lessons and examples is that normally legislations are enacted for the future and not for the past.

However, as two shades of opinion have come up regarding this issue based on the above two definitions, the final determination can be given only by the Supreme Court of Sri Lanka, in the absence of a Constitutional Court in this country. 


 

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