17 November, 2019

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Fourth And Final Day Of Argument At The Supreme Court

The fourth day of arguments began today or unlawfulness or otherwise of the dissolution of Parliament. Until the marathon session ended at 7:00 pm, no one knew that today was the final day. 

Chief Justice Nalin Perera

Yesterday the Respondents had their say as was reported here. Three or more respondents needed their turns to speak to their objections today and that is how the day began. Samantha Ratwatte, V. Chocksy, Ali Sabry and Chrishmal Warnasuriya spoke today for the Respondents. After that the attorneys for the Petitioners began giving their counter objections.

Many of the Respondents had argued that the Supreme Court has no jurisdiction to hear this fundamental rights petition under Article 126 of the Constitution which reads

126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV. 

As the Respondents put it, dismissing Parliament is not an executive or administrative act and this requirement is reinforced by Article 17 which reads

17. Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter. 

Using hyperbole, they had argued that if this is allowed, even the conferment of President’s Counsel status would be challenged as a fundamental rights violation. No, these are State functions not Executive functions they had argued

Senior Lawyer K. Kanag-Isvaran, PC, representing R. Sampanthan was the first to go. He had some gentle digs at poorly trained lawyers and those who engage in threats, while turning each time very imperceptibly towards Manohara de Silva who had indulged in near-naked thuggery yesterday threatening aggression against Kanag-Isvaran outside court. Saying this Kanag-Isvaran bowed gently at de Silva. That gentle rebuff made Kanag-Isvaran stand very tall. 

Thereafter Kanag-Isvaran simply stated that he would not repeat what had already been said by others and would confine himself to the two issues, first of  whether a fundamental rights petition was out of the jurisdiction of the Supreme Court (as raised by Manohara de Silva and others) and secondly the issue of the Sinhalese version of the Constitution in case of conflict prevailing with the Tamil version. 

Kanag-Isvaran did a careful and exhaustive review of the constitution and the jurisdiction of the Supreme Court. A review like the one here cannot do justice to his arguments – different aspects of which were supplemented next by M.A. Sumanthiran and Thilak Marapona. In essence he showed that dismissing Parliament is an executive action. He showed why even the conferment of PC status could be challenged if the person being made PC was unqualified or of poor character while better others deserving to be made PC were denied discriminatingly.

Briefly touching on the translation issue he said he is not competent in Sinhalese but would assure the court based on his consulting friends that the Sinhalese version was not different from the English or Tamil. He said this would be addressed in detail by Sumanthiran.

M.A. Sumanthiran was at his best. To the surprise of everyone he gave an explanation of legal texts that few seemed aware of. He began citing Artice23 (1) of the Constitution:

23.(1)All laws and subordinate legislation shall be enacted or made and published in Sinhala and Tamil, together with a translation thereof in English.

Provided that Parliament shall, at the stage of enactment of any law determine which text shall prevail in the event of any inconsistency between texts: Provided further that in respect of all other written laws and the text in which such written laws was enacted or adopted or made, shall prevail in the event of any inconsistency between such texts.

English is not mentioned because all legislation is drafted in English. It is the language that matters. No matter that the Tamil and Sinhalese versions are in conflict, it is the English that reflects the true intentions of the drafters because it is the language in which it is drafted. That is why the proviso in 23(1) says 

“Provided further that in respect of all other written laws and the text in which such written laws was enacted or adopted or made, shall prevail in the event of any inconsistency between such texts.”

Sumanthiran emphasized that the word text rather than language had been used. Drafters and judges work with English. That is why no one had noticed that the Sinhalese version of Article 70 had an extra sentence. (Later Justice mark Fernando’s son, Suren who was the youngest to speak followed by Hejaaz Hizbullah). The justices were mum, neither denying nor accepting that they worked with English texts. 

Sumanthiran used the Interpretation Section of the Constitution, Section 170, to show the definition of laws:

“existing law” and “existing written law” mean any law and written law, respectively, in force immediately before the commencement of the Constitution which under the Constitution continue in force;

Thus the Constitution itself (as Kanag-Isvaran held yesterday even as Manohara de Silva threatened like a street thug to do him harm outside court)  does not come under “laws and subordinate legislation.”

Sumanthiran pointed out that phrases like “unless sooner dissolved” came from our pre-independence constitution. Many phrases in our Constitution are lifted straight from the UN Conventions we are signatories to.  As an example he gave Section 11 of our Constitution

11. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

This he pointed out is lifted straight from Article 5 of the 1948 Universal Declaration of Human Rights. Thus Section 11 of the constitution was never drafted by us. It is a copy from international instruments. This shows the primacy of the English version. 

The great debate continued, much of it repetitive, on the relationship of three Sections of the Constitution:

1) Article 33(2)(c)

33. (2) In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power – (c) to summon, prorogue and dissolve Parliament;

 2) Article 62(2)

62. (2) Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament. 

3) Article 70, particularly sub-article 1

70.(1) The President may by Proclamation, summon, prorogue and dissolve Parliament: 

Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour. 

(2) Parliament shall be summoned to meet once at least in every year. 

(3) A Proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation: 

Provided that at any time while Parliament stands prorogued the President may by Proclamation – (i) summon Parliament for an earlier date, not being less than three days from the date of such Proclamation, or (ii) subject to the provisions of this Article, dissolve Parliament. 

(4) All matters which, having been duly brought before Parliament, have not been disposed of at the time of the prorogation of Parliament, may be proceeded with during the next session. 

(5) (a) A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. (b) Upon the dissolution of Parliament by virtue of the provisions of paragraph (2) of Article 62, the President shall forthwith by Proclamation fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. (c) The date fixed for the first meeting of Parliament by a Proclamation under sub-paragraph (a) or sub-paragraph (b) may be varied by a subsequent Proclamation, provided that the date so fixed by the subsequent Proclamation shall be a date not later than three months after the date of the original Proclamation. 

(6) Where the poll for the election of the President is to be taken on a date which falls between the date of dissolution of Parliament and the date before which Parliament is required by paragraph (5) of this Article to be summoned to meet, Parliament shall, notwithstanding anything in that paragraph, be summoned to meet on a date not later than four months after the date of dissolution of Parliament. 

(7) If at any time after the dissolution of Parliament, the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary, he may by Proclamation summon the Parliament which has been dissolved to meet on a date not less than three days from the date of such Proclamation and such Parliament shall stand dissolved upon the termination of the emergency or the conclusion of the General Election, whichever is earlier. 

The word harmonious interpretation of all sections, everyone agreed was essential. However, agreement stopped there. The Petitioners insisted that their interpretation was wholesome and harmonious. Article 33(2)(c) said the President had the power to dissolve Parliament. Article 62(2) said the normal period of a Parliament is 5 years but it may be dissolved sooner. Article 70  said any dissolution by the President can be only after the first 4.5 years or after a resolution by 2/3 of members. Article 70 in its subsequent sub-sections states what the President has to do in case he decided to dissolve Parliament – such fixing a date for elections etc. There is no inconsistency. This interpretation is harmonious.

The Respondents on the other hand, see these as standalone sections. Article 33(2)(c) lets the president dissolve Parliament any time. Article 62 in saying “Unless Parliament is sooner dissolved” means it may be dissolved any time before 5 years are up. Article 70 is stand alone, telling the President what he as to do when dissolving. They did not explain why they use a part of 70, while ignoring Section 70 (1) setting the 4.5 year minimum period. The lawyers for the Respondents  were poorly coordinated in later speakers repeating earlier ones and losing the focus of the hearers. Perhaps because of today’s rush the Petitioner’s’ lawyers mostly stuck to 20 minute speeches as the day wore on.

It is for the judges to choose either explanation. By lunchtime today heavily armed policemen were in the Supreme Court while the Special Task Force was in the court grounds. Judgment seemed imminent.

However, the arguments lasted till 7:00 pm. Jayampathy Wickramaratne, Viraj , Suren Fernando, J.C. Weliyamuna, Viraj Corea, Mohammed Ikram and Hejaaz Hizbullah spoke. The stay order ending yesterday had been extended by a day to today. Now it has been re-extended to Monday. The justices only said they would notice the lawyers for when the judgment will be delivered. It is widely believed that judgment will come on Monday or Tuesday the latest – the notice it is speculated, will be a literal notice on the court’s noticeboards rather than personal delivery which will take days.

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Latest comments

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    The oint is ver simple. Nobody in the courts or anywhere to ask to divide this nation or leading to such a situation whatever the name it is being given. Specially vellalas who have come to this country as plunderers, smugglers, captured during invasions, kallathonies and to work as slaves in Dutch and British sponsored Tobacco and Tea plantation have o right under any circumstances to give glimpse of division of the country. Therefore, if somebody talks of division or giving a hint of division of the country will get the outburst in the society, courts or anywhere, which is very much justified.

    The problem lies with the vellalas as a mental problem since 1933 when they formed racists Tamil Arasu Katctchi whereas Ordinary tamil masses never ever asked or requested division of the nation as Sri Lanka. Folloing thirty years of terrorism, they have learned the futility of such a request or talk or demand very much

    Therefore, any out burst in the courts or anywhere is very much justified and Manohara de Silva PC has continued justification.

    Standing as lawyers and their credentials immaterial as we can very well remember the stupidity of G.G. Ponnambalan QC was asking 50:50 for a mere 7% percent of population of Tamils in the North and East at that time.

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