Monthly Archives: October 2014

Dr Reeza Hameed: Constitution Changes – Points to Ponder

Originating in the works of Henry de Bracton and William Blackstone, the doctrine of necessity has plagued Pakistan’s history and M Munir CJ has rightly been labelled “the destroyer of democracy in Pakistan”. From that perspective, the doctrine of necessity will never get stale in Pakistan’s history. To be sure, our country has, through its law courts, which ought to have protected democratic virtue but opted to fall into despotic vice, set unparalleled standards for venality by being the first free nation to apply “the doctrine” to murder democracy in its nascency. In this old post from the archives, our friend Dr Reeza Hameed, examines the extension of the doctrine to Sri Lanka and we are grateful to him for his contribution to our blog. His article, which also analyses the case of Pakistan, follows below.

The government has claimed that it has a mandate from the people to implement its manifesto promise to convene a constituent assembly consisting of the members of parliament to formulate and promulgate a new constitution, that will derive its form and validity from the expression of the political will of the people and that the proposed constitution will strengthen democracy by abolishing the executive Presidency and replacing it with a Cabinet and the doctrine of necessity and Kelsen’s theory of pure law have been pressed into service to support the introduction of a constitution outside the framework of the 1978 Constitution. Continue reading

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Filed under Constitution 1973, Dr Reeza Hameed, Europe, Legislation, Pakistan, Sri Lanka

Dr Reeza Hameed: That Third Term

President Rajapaksa’s eligibility to seek a third term as President has become a contentious issue ever since former Chief Justice Sarath Silva declared several weeks ago that President Rajapaksa is legally barred from contesting a third time. Some commentators have challenged Sarath Silva’s views and Chinthaka Mendis was one of them (see his September 2014 article ‘Why Sarath Silva is wrong’). In my view, Sarath Silva is right in his assertion that President Rajapaksa is disqualified from bidding for a third term and that the Eighteenth Amendment (to Sri Lanka’s Constitution) did not remove the disqualification to which he became subject no sooner he was elected for a second term.

The view that President Rajapaksa is disqualified to contest a third term follows from a reading of the Constitution as amended by the Eighteenth Amendment, read together with the Interpretation Ordinance. A correct interpretation of the Constitution would lead one to the conclusion that the Eighteenth Amendment was only prospective in its operation and despite that amendment President Rajapakse’s disqualification continues. Continue reading

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Filed under Discussion, Dr Reeza Hameed, Nadesan QC, Sri Lanka