23 September, 2020

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A Dangerous Precedent: The Supreme Court & The Dissolution 

By S. I. Keethaponcalan

Dr. S. I. Keethaponcalan

The Supreme Court was presented with a relatively simple case when entities which did not approve the dissolution of Parliament challenged President Sirisena’s proclamation. It was a simple case because the latest amendment (19) made to the Constitution explicitly stated that the President “shall not” dissolve Parliament within the first four and a half years of its first meeting.

Many people like me expected the Supreme Court to deliver an “express” verdict following the first hearing itself, precisely because of the simplistic nature of the case. A quick verdict could have also been justified by the need to restore sanity and stability to the system.

The Court did not agree. First, it postponed the decision to December 7 and then formed an expanded bench to hear the case. Again, the Court deferred the decision to December 10. The implication being that, according to the opinion of the Court, it is not a simple and straightforward case to decide. When the case is not easy to determine, the verdict could go either way. 

If the Court decision goes in favor of the President and his decision to dissolve Parliament before the stipulated four-and-a-half-year period, the delay and the expansion of the bench would serve as a shock absorber. A considerable amount of people expects the Court to disapprove the dissolution. They will be disappointed and may criticize the Court for being corrupt. By delaying the verdict, the Court also allowed members of the bench to endure political pressure as too many political power players may be working to influence the decision of the Supreme Court. Hence, fingers crossed in term of the final decision of the Court. 

A decision to uphold the dissolution of Parliament would create a bad and dangerous precedent. Reports of the court proceedings indicate that one of the main arguments of the respondents in this case was that the action of the President was critical to save the country from a serious predicament. The reported “ambulance” analogy indicates that they believe that the measure should be approved even if the dissolution is illegal and unconstitutional. Approving such as an argument will prove to be disastrous for the country in the long term. 

As far as I know, no political leader who grabbed power illegally ever stated that he/she had done it to promote a self-serving agenda. All illegal power-grabbing actions are justified by the need to serve the national interest. The current Sri Lanka situation is no different. Therefore, if this action is approved, Sri Lanka presidents in the future can dissolve parliament any time they want without any restrictions making people’s sovereignty a mockery.   

They can justify untimely dissolution of parliament by using one or another existing issue and painting them as a crisis. Hence, a decision to uphold the dissolution will confer unlimited powers on the president as parliament will be unable to exercise any control on the chief executive. Parliament will be under constant fear of dissolution because any challenge will force them to face new elections. This will transform the already powerful presidency into a formally semi-authoritarian institution by irreparably damaging the balance of power between the president and parliament. 

One does not need to remind readers that Sri Lanka is always in some sort of crisis. It is a land of protests and strikes. There are plenty of problems that can easily be exploited by a motivated president to justify the dissolution of parliament. Moreover, a crisis could be manufactured as well. The existing problem itself is a manufactured crisis. 

The Court needs to take into consideration two different types of crises that encompass the current imbroglio. When Mahinda Rajapaksa was appointed Prime Minister by the President, parliament did not have a problematic environment. Ranil Wickremesinghe proved his majority in Parliament without the votes of the UPFA in April. However, it was the outside environment that was used to argue that the country was in a crisis and needed to be saved by a new power-structure consisting of Sirisena and Rajapaksa at its helm. 

The depreciating Sri Lankan rupee and the economic woes of the country were cited by the Sirisena-Rajapaksa combo to dismiss Wickremesinghe headed administration and install a new regime headed by Mahinda Rajapaksa. The alleged corruption of the government was also discussed considerably. Of course, the Rajapaksa headed government did not have the required numbers in Parliament leading to a chaotic disgrace in the national legislature. The inability to prove their majority and the inability to face the challenge of Parliament to President Sirisena and Rajapaksa government, eventually forced the President to dissolve Parliament.

So, when the respondents in the Supreme Court argue that the dissolution was necessary to deal with the crisis, which crisis are they talking about? The perceived crisis in the country or the crisis in Parliament? 

The crisis in the national legislature could have been resolved by allowing the party with a provable majority to continue the administration and have the election after four and a half years or five years. It was the undemocratic move of the President that ignited the parliamentary crisis. Hence, the President cannot use the Supreme Court to take advantage of a crisis he himself created. Upholding the decision to dissolve Parliament would amount to rewarding the wrongdoers. Also, the way the crisis was manufactured and used to dissolve Parliament successfully may serve as a blueprint for future violations.

Hence, the Supreme Court decision on the dissolution of Parliament by President Sirisena would be a landmark verdict regarding democracy in Sri Lanka in the long term.    

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Latest comments

  • 11
    0

    This politics is mere deception..
    M&s is cheating 22 million Sri Lankans ..
    Now; he must be impeached soon.
    He is fooled by Mahinda ..
    He is misguided by his cohort..
    I do not have any hope in court.
    I think that Mahinda and M&s bought them or threatened them for their lives ..
    So..
    Otherwise;
    M&s has all tricks …
    He will cheat judiciary..
    Wait and see.
    He will buy all people ..
    Vote JVP.
    They are only good people in politics now

  • 2
    0

    Lanka No. 3: You say: ” Vote JVP”. For WHAT and WHY? Next election must be very critical for S/L. Therefor the VOTER , this time must make a informed decision as both the major parties have let us down very badly taking turns. You know it and perhaps that could be your reason to say “Vote JVP”. Fine and I agree there must be an alternative, but please not it must not be just an alternative.. I asked “WHAT” meaning specifically their “AGENDA” for the country. So far, nothing of that sort. They say, that would be made known in January 2019. The presentation of that PLAN is in the hands of an organization called NIO. So we still don’t have an answer for “WHAT”. Then I asked “WHY”. This “WHY” is mainly centered around “WHO”. We still don’t know “WHO” will provide the “DELIVERY” of that plan. Who are the candidates they will nominate for us to vote? The votes have no idea of any of them, excepting six of their MPs and few others at local levels. Like in very many elections, JVP will be caught by surprise and nominate “UNKNOWN” quantities for us to vote. That will NEVER WORK. Do you know, at least WHO their “District Organizers” are? Has JVP brought on to their “STAGE” a single “Prospective Nominee” and INTRODUCED to the “VOTER” , other than the “SIX” we still see on a daily basis.. If they – JVP go on like this, history will be repeated.

  • 1
    3

    In JVP, Anura KUMARA DISSNAYAKE AND VIJITHA HERATH must lose.

    • 0
      0

      Obviously there are wheels within wheels.

  • 2
    3

    I regret to note that the author describing the case as simple and that it was made complicated with the expansion of the bench. This is an indirect statement describing that had the original bench heard the case the decision would have been arrived at as scheduled and it would have been to the author’s liking. The author fails to recognize that this has been made complicated by the whoever who was responsible for drafting the 19A. If the requirement was to extend the limit of discretionary dissolution from 1 year to 4 1/2 years then it was a case of amending that clause only. A cribbing mind made it complicated. Now the bench has an unenviable task of giving meaning to thoughtless drafting of the most important document of the country. They say copy cats never catch rats.

    • 4
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      GoodSense
      There is nothing wrong with writer’s line of thinking.
      I find arguments on the difference of Sinhala/English versions hilarious.
      Read this example (I posted elsewhere.)
      When MS became the President, he was given a special vehicle called Constitution in which he was allowed to drive without a driver’s licence.
      He drove this vehicle for 4-years at normal speed.
      One day he wanted to go somewhere in a hurry. As directed by his advisers, he took the expressway for the first time.
      When he was driving at high speed, suddenly he saw a roadblock. What can he do? He had to stop at the roadblock cursing his advisers for their failure to warn him in advance.
      He got down and walked to the barrier only to see a notice in English which states “This barrier is man-operated which needs 150 men to lift it.”
      President can’t understand English.
      So he thought, “What the heck. I am from Polonnaruwa. In Polonnaruwa, this is what we do.” And then he crawled under the barrier and went to the other side.
      Now he is stuck there as his vehicle is still parked at the other side of the barrier.
      The argument of Pivithuru, some MPs and lawyers is that the President has a right to crawl under the barrier to go to the other side as he had an emergency to use the loo located there.
      But his vehicle called Constitution is still parked at the other side which is the only vehicle he can drive without a licence.
      Now that everyone has recognized him, President can’t crawl back.
      He is waiting until someone “strong” to come and lift him over the barrier and keep him at the other side so that he can get back to his vehicle and return home.

      • 2
        2

        Come on Champa, what a lousy example! The guy has no idea where the loo is and shat in his pants. Don’t you know that he is now known as 4G? By that I don’t mean the latest mobile communication standard that his daughter seems to be an expert of.
        .
        No, 4G means GGGG (Goo Ga Gaththa Gamaya)

      • 0
        0

        Dear Champa,
        What you write is good reading in a lighter vein. The serious part of it is this combine (MY3 +RW) promised us a viable alternative to the previous regime and got our vote for it. It is sad if both of them are able to run away breaking promises. Now they are falling apart and recent actions, not quite well known, is the cause for the fall out. Certainly it cannot be the so called neo-liberal rightist thinking as alleged because that was the policy right through for the first few years. In any regime there is the unpublished, illicit enjoyment of power well mixed with corruption. My reading is that there was a clash in the process of this illicit enjoyment of power and its intensity is the highest now. Affairs in the Colombo Port can be a part of the matters concerned. I am quite sure that had RW got elected as President with MY3 as premier with MY3’s side having a minority-majority in Parliament supported by TNA and others, then with this convoluted constitution, authored by a cribber, RW would have done the same thing what MY3 did if all options availed have exhausted. (Undemocratic actions excluded). That is why I commented indicating that the interpreting of the constitution cannot be that simple and contest the writers implied contention that the delay in giving out the decision is due to the expansion of the bench.

        • 0
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          Good Sense
          Yeah, I understand.
          I didn’t vote Ranil or Maithri. Therefore, I am not bothered about their promises. In fact, I was against them for the past 4 years and still.
          Magamapura Port Agreement was done with the consent of the President and the Cabinet which could have easily stopped. Though Mahinda sought their help for power, I don’t think masses will ever forgive them.
          I still am of the view that the next President should NOT be a Rajapaksa. After witnessing all happenings for the past 5 weeks, my opinion of the same has doubled its intensity.
          Our motherland is seriously in need of new leaders who have their own vision.
          You know Good Sense, who knows, you and I will be in the same block when selecting a new leader as our next President.

    • 1
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      “They say copy cats never catch rats.” Spot on Good Sense ! The decision as the
      author puts it , with this many judges and the emergency situation of the
      country , must have been prompt. At a time arguments are put up that it is the
      FUNCTIONING AS PRRIME MINISTER that has been suspended but M R is still
      the P M , time waste – arguments need not be allowed . Is there a P M anywhere
      in the world without portfolio ? If it looks complicated for the judges , so is their
      judgement going to be ! Where is that going to end ?

  • 6
    0

    In a country like Pakistan ,which is rated so low in democratic governance ,when the supreme court ruled against Sherif government ( as well for corruption charges) , he with the support of Army went against the court ruling , by threatening the CJ and eventually replacing him. The CJ took the case to the streets with the help of the public and rest was history. The government was forced to quit and eventually Sheriff him self was arrested on his return from UK and now serving his time in prison. Expecting this much of sanity in a country like no other is near impossible. Over the years the politicians not only trampled our constitution but weakened the basic foundation of the judiciary it self, which has now hit the bottom.In Lanka the courts, judges and CJ are hand picked by crooked politicians to serve their purpose. They end up doing the bidding for their masters. We had Eva, Mohan ,Sarath, GLP, Wijedasa and the rest. If the judges dont comply they are threatened and thrown out like Shirani. Then you have the public who keep electing the criminals. and some or another expect a change.

  • 4
    0

    Yeah, I totally agree with you on this.
    This would have been a simple case as the Parliament is fixed for 4 1/2 years with the President having no power to change it.
    The delay in delivering the verdict didn’t sit well with many people, I guess.
    I am not sure whether the SC is scared of the Executive and therefore, mindful of the repercussions as bluntly reminded by one of the lawyers openly.
    On the other hand they were told that there could be violence if the verdict is in favour of Petitioners. I am sure the SC has taken good note about these statements although they are called psychological manipulation tactics in the Courtroom.
    At the same time, one can guess the SC has only provided the platform for as many lawyers as possible to freely delivering their arguments in support or against the case.
    Some people think if the SC’s verdict is against the dissolution, it will be sufficient to bring an impeachment against the President. But I don’t think it is that simple. Bringing an impeachment is a process where certain steps have to be followed.
    The issue is not about holding or not holding elections. What the country is eagerly awaiting to know is whether the SC could properly define limits of President’s unconstitutional moves.

  • 1
    3

    Did Tamil eelam Tigers practice democracy? Did they have freedom to express opinions as you do so now? Very brave yaar? why were you silent during the Tiger reign of terror when TNA were actually Tiger nominated agents?

    • 2
      1

      Sandhu
      You talk about TNA hey? You should have been blind for the past 5 weeks, not to notice Maithri, Mahinda and Anura Kumara all three, who were vociferous against LTTE terror prior to 2009, are now seeking TNA’s support for their political survival. I am sick of their double standards.
      Ranil and UNP were always with LTTE and TNA since 2000 and I am not surprised of them being still together. Isn’t it ironic that the same TNA we accused as agents of LTTE has come forward today, to protect the democracy in the Parliament as stipulated in the Constitution, leaving our Sinhalese leaders helpless?

    • 0
      0

      Sandu!
      A question against a question does not give an answer. Tigers have been fighting for a cause whether you like it or not, and during that time democracy takes a back seat. Further they have been referred to as a terrorist organisation, hence you can’t expect democracy. Unlike in the south who fights for ‘no cause’ but personal power’ even during the so called democratic governments when emergency is on it is very dangerous to speak against the government however wrong they may be.
      Tigers were bent on achieving Eelam and therefore their focus cannot be distracted. Like during wars between nations democracy become a dead horse/lame duck on both sides. It is not who is right and who is wrong but who will achieve the goal.
      How did the Srilankan government massacre their own citizens in thousands at Mullivaikal / Mullaiteevu to achieve what? Have they achieved? Who is responsible for the skeleton in Mannar.? a democratic government?
      .

  • 3
    1

    The writer is a political science professor in a university. He says that the case is a simple one.

    What a fantastic interpretation of the constituion. There are the so called academics backing the democracy and Yahapalanaya. These are the so called political science Gurus. Somewhere I saw that he mentions that the Parliament can not be dissolved and have an election before 4 and half years.

    The term of the government is five years. The People of Sri Lanka need to wait 4 and half years to evaluate the performance of the government. These 4 and half years, is a draconian undemocratic section included in the constituion through back door.
    Now, the Supreme Court has been trying to connect all these sections and trying to interpret the constitution as a Whole document in deciding whether the dissolving of the Parliament is in accordance with the constituion, principles of democracy and needs of the people of Sri Lanka. That is an extremely difficult task. That is my thinking.

    The writer should have been in the Supreme Court instead of a University.

    • 3
      2

      Suni Dhanayake
      You are barking at the wrong tree!
      You need to direct your accusations to UPFA MPs who are shedding crocodile tears against 19th Amendment, today.
      You say, “These 4 and half years, is a draconian undemocratic section included in the constitution through back door.”
      It was not came through back door.
      The UPFA MPs who held the majority at the time in the Parliament and their Guru Maithri were fully aware of the draconian 19th Amendment when they passed it for Ranil by 2/3 majority.
      Without changing Presidential powers, 19A has fixed the Parliament for 4 1/2 years with the consent of the President and UPFA MPs.
      Supreme Court has no power to change an Amendment which has been passed by 2./3 majority in the Parliament.
      In 2015 I have written to LankaCNews against 19A. When Mahinda and JO repeatedly misled people for the past 4 years that they can topple Ranil’s government, I pointed out many times that they cannot do that until Parliament completes 4 1/2 years.
      Instead, I suggested them to bring down masses to Colombo in hundreds of thousands and force Ranil to step down or else, force him to go for mid term elections, so that Yahapalanaya government could be changed democratically. Instead, they forced themselves through a window grill of the Temple Trees in the moonlight and tried to prove ownership using a forged deed given by the President.
      Then to cover up his forged deed, the President took a hasty decision to dissolve Parliament exercising a non-existent power.
      As a result, the matter is now before the Supreme Court.

  • 0
    0

    S. I. Keethaponcalan: Both sides in the present ‘dispute’, ‘crisis’ or whatever are trying to make it into it as a question of legality.
    .
    The ‘removal’ of the PM on 26 October and subsequent ‘happenings’ indicate a putsch. Both sides do not want to go to the bottom and this is “A Dangerous Precedent”.
    .
    A repeat is lurking close by and when that happens….?

  • 1
    0

    The Court did not agree. First, it postponed the decision to December 7 , The December 10

    Majority of foreign diplomats highest-ranking representative advised for parliamentary votes
    for the change of prime Minister the did not ask what the Constitution reason is doubts to keeping making of choice. Parliamentary is People make there choice.

  • 0
    2

    Actually CT is wasting space. And our valuable time. What purpose on earth does it serve when the judgement is a day away?

    Soma

    • 1
      0

      somass

      “What purpose on earth does it serve when the judgement is a day away?”

      Does it matter to you how many days CT has wasted in this only to look at you respect when you have not only wasted 70 years and destroyed many lives, property and wasted billions of rupees but also keep wasting your time reading your own typing in these forums?

      Get a job.
      Let your women folks return from Medieval Middle East.

  • 1
    1

    Mr K
    You say
    A ‘considerable’ amount of people expects the Court to disapprove the dissolution. 
    What do think the ‘majority’ expect?

    Soma

  • 0
    0

    Is Article 33.2.(c) for G A R N I S H ?

  • 2
    1

    “Many people like me expected the Supreme Court to deliver an “express” verdict following the first hearing itself, precisely because of the simplistic nature of the case.”
    *
    The case is not simplistic (sic) and it will be simplistic to oversimplify matters.
    *
    There is procedure to follow; and judiciary cannot treat such matters in an open and shut fashion.
    Not much is worse than academic dogmatism.

  • 1
    0

    Be happy that you can discuss this matter as of today. If MR or his relatives were in power there would have been nothing to discuss. As long I remember VP was never served as president of Lanka.

  • 0
    1

    Your entire essay is exactly what puts judicial processes at peril. In law, there is no such thing as an open and shut case to start with.

    Secondly, you have not understood how the Supreme Court and the Fundmental Rights procedure works.

    When a FR is filed, the Petitioner is required to suggest 3 free dates of which one will be selected by the listing judge. Thereafter AG will be sent notices. So would the Reapondents named. However when there is urgency Petitioners may make an application to the Registrar and the Listing Judge to grant an early date.

    Then the case is taken for support for Leave to Proceed. At this stage Court is not going into the merits, but only whether a prima facie Case is made. If so Leave to Proceed is granted.

    Once Leave to Proceed is granted, the Supreme Court Rules 1990 provides that the Respondents should file their Objections within 6 weeks from the date of granting leave. Petitioner has 4 weeks to file Counters.

    However in urgent cases like the one in hand, shorter periods maybe granted.

    At no stage did the SC indicate that a judgement could be expected on 7.12.2018. The SC only issued an interim order valid till 7.12.2018 and fixed the matter for hearing on 4.12.2018 to 6.12.2018.

    Thereafter on 6.12.2018 since arguments were not concluded, it was refixed for 7.12.2018 and the interim order extended until the next working day – 10.12.2018.

    At no point did the SC indicate that the judgement would be delivered on 10.12.2018.

    The general practice of Court is to deliver judgement on a future date. Cur. Adv. Vult. is the Latin term for this process. Judges retire to chambers to decide. The draft judgment will be exchanged and discussed. If any judges disagree they may write a dissenting judgement. They may write a separate judgment agreeing on the findings of someone else. It’s a long process. Once a decision is reached, parties are notified and judgement is delivered.

    One cannot expect judges to sit at home over a weekend and write some hogwash as a decision. It has to be a reasoned judgment because for years to come, each and every word will be dissected debated over in academic writings and law lecture halls.

    Inasmuch as justice delayed is justice denied, justice hurried is justice buried.

    • 0
      0

      Very good. good excuses

    • 0
      0

      Thishya Weragoda
      .
      Your excuses for SC taking its time may be valid in any other normal occasion.
      You must admit that we are facing an unprecedented turmoil right now.
      The entire country is at peril.
      President’s integrity is at question.
      There are two Prime Ministers and both are interdicted and denied office at present.
      There is no Cabinet as it is also interdicted.
      There is no budget.
      There is no official government.
      We only have an official opposition. Nobody knows which party is the official government.
      Foreign loans are suspended. (Not that I support loans, but the country is helpless without them now, thanks to 70 year long political idiocy.)
      Even UN has intervened.
      Uniforms and insurance for children are held up. (Low income parents who were waiting for uniforms in January will find it difficult to provide uniforms to their children on their own. If they have 2 or 3 children, anybody can imagine their plight.)
      Government sector is almost numb.
      Can you tell me whether there is any other country which has faced a similar situation in the entire world history?
      That is why people are anxious to know the verdict of the Supreme Court.
      Everybody wants to see that normalcy and stability is returned as soon as possible.
      Do you know, The Hindu has reported that a woman in Moneragala who was a vegetable grower who lamented for suspending her husband’s pension since November, which is Rs. 250, I repeat only Rs. 250, due to current political unrest in the Parliament? This is only one example.
      Do you think how many more people in this country are suffering for no fault of their own, because of this rug-of-war of stupid politicians?

    • 0
      0

      The Bush V Gore case went to the U.S Supreme Court on December 9, 2000. Hearing on Dec 11. Decision rendered on December 12. Can we expect that kind of responsibility here?

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