30 September, 2022

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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

  • 20
    11

    Sumanthiran

    Here comes the aspiring Vellala KASmaalam K A Sumanasekera.
    How come the inhabitant judges use English as their working language, SWRD didn’t sacrifice his life for nothing. He was killed because he fought for the downtrodden, poor inhabitants, …………By the way who killed him?

    It is a shame you have exposed the judges.

    somass, Lal loo, Eagle Blind Eye, ………………….. wannihami, ……………….

    • 4
      11

      Let us hope the SC will keep the SPIRIT of democracy alive in their ruling and not just follow legal formalism. Sri Lanka desperately needs an election NOW and SC would show the way.
      Politicians over 65 years of age should be banned from contesting so that younger generation may take over and form a CLEAN govt.

      While ostensibly to curb the powers of the President, the 19th amendment was put in place to keep Bondscam Ranil (who was looting and selling off Lanka’s strategic assets to his Trumpland backers with fake Xperts from Millennium Challenge Corporation and IMF ), for 4.5 years as PM, and denies the people, or DEMOS the right to seek a general election for 4.5 years. This clause is a violation of the SPIRIT of DEMOCRACY.
      Also, Bondscam Ranil used the 19th to turn the Parliament into a bipartisan (UNP-SLFP) Cesspit of Corruption and horse trading, in the name of (fake) reconciliation. Both RW and his partner in Financial and Hate crimes against the peoples of Sri Lanka, Mahinda Jarapassa, must be held accountable and share the same prison cell with their cronies and families.

      • 0
        4

        Dodo/Don Stanley,
        Please, I beg you, less about Trumpland and MCC and bondscam Ranil.
        Surely you can write without including irrelevant garbage ??

      • 7
        1

        First and foremost the democracy shall be restored in accordance with the constitution. Then think of any election.

    • 9
      1

      This is not about the language and it is about what the original language constitution is written. Please don’t create a communal talks and create unnecessary issues in the country.

    • 8
      0

      We see here crowds of armed police in court premises. Meaning that the threats being excercised on the judges should be much higher than any where else.
      Thugs obviously proved to the nation in in the Parliament few weeks ago visit the court hearing almost every day. Drug kin pin Nimal Lanza and the other high criminals attacked the SPEAKER broad light with the ON LOOK of world communities are roaming to support their camp.
      And my question:
      If an average school teacher or any other professional happened to violate the manner some parliamnetarians did upon the command of MIRIS KUDU Mahinda Rajakse, would the police and responsible authorites would stay slumber to the very manner they serve it to so called parlamentarians.
      Not a single palirmaentarias are yet questioned on their brutal behaviours on that day in parliament.
      Most of them stay roaming in the city, even if they proved to own higher criminal potentials.
      Why should the kind of parliamentarians be blessed with unlimited IMPUNITY?
      And why Derana and Hiru TV have the right these higher criminals to be in their panels when political discussions were ORGANISed ?

      Is that not even high criminals are made to believe as they did nothing ? Or they are not that harmful as appeared to be by their PRACTICAL acts in the parliament ?

      When would LANKEN state set EXAMPLEs for the youth ? If CRIMINAls are welcome by PUBLIC TV channels as nothing was the case, what would be the outcome in the future ?
      That Aruindhathi and other men that LED violence were called for political discussions also last week in the public domain TV channels.
      Why on earth, no RULE of law seem to be the DEAD also regarding HIGH criminals?

  • 45
    2

    “Armed Policemen in Court premises STF on Court grounds”??? What great harm to the fair name of Sri Lanka and her justice system inflicted by narrow political chicanery of the Sirisena-MR duo. Tamil lawyers Kanag-Iswaran and Sumanthiran threatened directly and by innuendo by racist thugs masquerading as senior lawyers. An explosive situation is developing. Even judges surely must be feeling threatened and ill at ease.

    Peaceful citizens fear there will be pre-engineered violence against them if the verdict goes against the Sirisena-MR junta. Tamils and Muslims in Colombo and elsewhere in the South live in mortal fear of their lives. One recalls Sirisena’s
    recent threat “I will set fire to the country”

    Vanangamudi

  • 43
    0

    Again an excellent reporting CT.
    Well done.
    Please keep it up.
    Also please provide links to facilitate reading the FULL TEXTS of the two judgements when they are delivered in the SC and CA

  • 46
    1

    “Senior Lawyer K. Kanag-Isvaran, PC,….had some gentle digs at poorly trained lawyers …”

    These are “cut and paste” lawyers…in the mo(u)ld of Namal Rajapakse

  • 35
    2

    THEY WAY LAWYERS LIKE MNOHARA DE SIVA BEHAVE AS YOU REPORTED ITS LOOKS LIKE THE LIFE OF KANAGA-EESWARN AND SUMANTHIRAN IS IN DANGER.We wonder how the learned panel of judges kept silent allowing this type of things to happen in side the respected courts.ANY WAY THESE TWO TAMIL LAWYERS MUST LOOK AFTER THEIR OWN SAFETY BY NOT ATTENDING COURTS ON THE DAY OF JUDGEMENT.ALUTHKADE HAS BECOME MARIYAKADE.

    • 23
      0

      In Parliament there used to be something called unparliamentary language. It may be the attribution of an uncomplimentary or insulting adjective to another member. The Speaker had the authority to remove such persons, if they failed to withdraw what they said. The Supreme Court, or any court, must surely have its equivalent – not injudicious? The CJ surely has the power to remove persons who resort to threatening language in court.

    • 3
      12

      There is absolutely no danger.
      In fact there were threats against Sumanthiran from terrorists in the North sometime ago. Wigneswarn wa a Judge in Sri Lanka during the war years when Tamil Terrorists went on to murder innocent Muslims at Prayer and innocent Sinhalese with religious places, banks , trains, buses bombed. All the TNA MPs lived in Colombo because they were afraid to live in the North, that they claim their traditional Home land. But here, abusing the freedom offered to them by Colombo Telegraph, Paragon and others of their ilk are spewing venom and hatred and also trying to create a fear ethos.
      The claim that Manohara de Silva threatened Kang_Iswaran is clearly false as the Bench so no re4ason to censure Manohara Silva.
      It is also Bizzare that Sumanthiran is claiming that the drafters of the constitution had violated the national languages act in giving supremacy to English surreptitiously. Clearly, there are a lot of things in this dung heap of a constitution that have to be cleaned, because a couple of purchasable political lawyers were used to draft the constitution.

    • 8
      0

      Is there no provision in any law some where, to say that threatening an opposing lawyer/ client, with bodily harm, which may be real or implied is PUNISHABLE, especially when the threat is made in the Court Room in the presence of 7 Judges and fellow lawyers with ethnic flavours.

      It appears that not only the PARLIAMENT PROCEEDINGS but even the COURTS PROCEEDING”S too have become a mockery in Srilanka.

    • 6
      1

      Paragon,

      Manohara de Silva is a MaRa GoTa lackey. He is prone to thuggery as his pay masters. This uncivilized lawyer should be castrated and hung by his balls as a lesson for other MaRa GoTa lackeys.

  • 14
    1

    As a matter of principle, court proceedings should not be reduced to a level of a cricket match to be given a ball by ball commentary. These judges have an unenviable task. Let them perform their difficult task with respect, which is evident by the fact that they needed one more day from the scheduled date. Nobody ever highlights how a fiasco was committed in drafting the 19th amendment and allows the fellow who regularly cribs to go morally scot free. Had it simply amended the one year bar to four and a half, the President could not do a thing and the team would have to function as planned although it would have been a rocky path.

    • 3
      0

      Not so in the US and good democracies. In England, like the Corbin_May Brexit Delibera,tions there is absolute civility and brilliance in parliament.

      Honesty is at stake.

      Transparency is the key to Democr.acy.

      People must know and it deeply concerns their existence.

      RIT or ROT .

      Educational articles for juniors to learn from.Thanks C T.

  • 11
    0

    Sri Lanka Matha (Hallow Mather Lanka)

    If—
    Rudyard Kipling, 1865 – 1936
    If you can keep your head when all about you
    Are losing theirs and blaming it on you;
    If you can trust yourself when all men doubt you,
    But make allowance for their doubting too;
    If you can wait and not be tired by waiting,
    Or, being lied about, don’t deal in lies,
    Or, being hated, don’t give way to hating,
    And yet don’t look too good, nor talk too wise;

    If you can dream—and not make dreams your master;
    If you can think—and not make thoughts your aim;
    If you can meet with triumph and disaster
    And treat those two impostors just the same;
    If you can bear to hear the truth you’ve spoken
    Twisted by knaves to make a trap for fools,
    Or watch the things you gave your life to broken,
    And stoop and build ‘em up with wornout tools;

    If you can make one heap of all your winnings
    And risk it on one turn of pitch-and-toss,
    And lose, and start again at your beginnings
    And never breathe a word about your loss;
    If you can force your heart and nerve and sinew
    To serve your turn long after they are gone,
    And so hold on when there is nothing in you
    Except the Will which says to them: “Hold on”;

    If you can talk with crowds and keep your virtue,
    Or walk with kings—nor lose the common touch;
    If neither foes nor loving friends can hurt you;
    If all men count with you, but none too much;
    If you can fill the unforgiving minute
    With sixty seconds’ worth of distance run—
    Yours is the Earth and everything that’s in it,
    And—which is more—you’ll be a Man, my son!/(Mother Lanka)

    • 1
      0

      Also reminded of the Hymn for Ceylon by Rev. Senior of Gurutalawa:

      Give peace within her borders
      Twixt man and man goodwill,
      The love all unsuspicious,
      The love that works no ill.
      In loyal lowly service,
      Let each from other learn,
      The guardian and the guarded,
      (Till the end of days)
      Edited last line)

      • 0
        0

        The ashes of Rev. W.S. Senior were interred in the graveyard of St Andrew’s Church in Haputale in 1938, but I don’t understand the reference to Gurutalawa.
        .
        Rev. Senior spent many years in Sri Lanka, some of them at Trinity College, Kandy. In his time Gurutalawa would have been an unheard of little Muslim village.
        .
        Owing to the Second World War, S. Thomas’ Mt Lavinia moved up there. A “branch school” remains there, only about ten miles from Haputale. Is there some hitherto unknown connection between Senior and the village, or with the farm then owned by Leslie de Saram?
        .
        Thanks for the poem, but be careful with these references.

    • 0
      0

      Sisira! Congratulations. An appropriate poem for to-day.

    • 0
      0

      Bravo !

  • 9
    0

    Dear Supreme Court

    RE: argument on the 11 cases regarding the dissolution of Parliament.

    CT, thanks for the succinct summary of the proceedings.

    Each party must have their day in court. Each party is going to present their case based on their self-interest. The self-interest of some parties, may overlap with the self-interest of the constitution and the people. However, the Supreme Court must interpret the Constitution, based on what the Legislators INTENDED , when the constitution was drafted and APPROVED, and AMENDED AND APPROVED ( 19A), to correct the flaws of the Constitution.

    Therefore , both the Constitution and the Amendment 19A must be taken together. The constitution by itself, was like a unicycle, with one-wheel, unstable, and only acrobats could ride The 19A introduced a second wheel, a bicycle, was more stable, and allowed for more stability to the constitution. Additional wheels, 3rd wheel and a fourth wheel, will certainly give more stability, but we do not have it yet.

    The language and medium of communication is secondary to the intention of the legislators. If originally drafted in English, the the English version will be more accurate.Same with Sinhala and Tamil.

    So, this case must be interpreted as a bicycle, with two wheels, the original constitution and the Amendment, 19A. As such, common sense and what the legislature intended for parliament dissolution, was:

    1) . 4 1/2 years after election of the parliament by the president

    2. ) 2/3 Majority of the parliament needed for dissolution before term.

    3.) After 5 years.

    So, the president dissolved the parliament unconstitutionally.

  • 4
    0

    Dissolution of Parliament happens in two situations –

    1. automatically by lapse of time – five years after the first day appointed for the first sitting of a [new] Parliament [62(2)]

    2. Other by Presidential order:-

    i. At the discretion of the President, anytime after four years and six months after the first day appointed for first meeting of Parliament and before the automatic dissolution that happens after five years,

    ii. When Parliament by a 2/3 majority requests a dissolution. [Art 70]

    In this context there appears to be no inconsistency between the President being empowered to make an order dissolving Parliament and subsequent Article prescribing the circumstances under which he can make such order

  • 5
    1

    If G GG Poonambalam would have been there his argument would have stormed the SC.But nay how next generation of Tamil Layers are holding the fortress. Manohar switched to thuggery when he culld not with stand the raguments from Tamil layers . Sirisens group of lawers are were tring to use langauage plicy to protect Mahinda and Sirisena.

    • 3
      0

      Pon Kulendran,

      Is there an IQ difference between the Tamil Lawyers and Sinhala Lawyers? Just curious.

      • 2
        0

        Amarasiri!
        it is not the IQ but the capacity to fish out’ TRUTH FROM FICTION’

        • 2
          0

          K Anaya,

          Isn’t that one of the measures of IQ?

      • 0
        0

        A.
        The accents are very different; very obvious difference eh?

    • 0
      2

      What shop!
      “If GGG Poonambalam would have been there his argument would have stormed the SC”.

      If GGG (great greedy guts) had been there he would have gone with the highest bidder, MR like he stooped down to DS to disenfranchise the pathetic Upcountry Tamils who were denied all human rights.

      Thus He would have made dazzling arguments for MR,s side with clever words but no conscience.

      • 1
        0

        Not only GG, all Tamil lQWYERS CAN BE BOUGHT.
        The whole diaspora has been bought by the West for its agenda.

    • 0
      0

      No One from the Government Analyst’s liked to present when GG was defending murder.

      Example one case involved the quantitative analysis of The poison consumed by the victim of GG ‘s client. Sri Lankan Analysts were top class in those days. We were very skilled analysts, used very sensitive classical analysis, statistically checked independent results etc within the Department and double checked by an independant lab. No chemist could have challenged our conclusion. Which in this case was positive.
      GG got the latest Journal from Malaysia where his wife ,s empire is, by urgent post. In it was an instrumental technique not corroborated by independent classical analysis. It claimed better accuracy, but not required in that case because the lethal dosage was much lower. Poison was well above this limit and the sensitivity of our method to micrograms. Victim would have sure died at that level. All this was said matter of factly.. GG questioned the mild Scotland Yard trained Deputy Government Analyst asked him whether he had read the latest literature on it, “yes” or “no”, flouting his newly opened copy.

      The reply of course was “no” in the calm british official style, no drama. GG kept mocking the Government Analyst at that for a long time, saying they were using out dated experiments etc. There being no other chemists but these two in the courts, GG prevailed.

      I shudder to think of the consequences had GgGb been there.

  • 2
    1

    UN – BOSS, A portugal citizen, who converted Sri lanka to a Europe, is coming at the request of Ranil the NERO to Sri lanka to establish DEmocracy. His only demand is to give Equal status, in Sri lanka, to Tele Evangelism.

  • 1
    0

    I am certain that the Constitution being exposed in this manner for the benefit of everyone who can read and understand English, not only the black coated Legal Beagles, will now know the Law. However what is not incorporated, such as wild gestures, innuendoes to intimidate fellow Counsel to influence the Bench to decide not necessarily on points of Law itself negates the entire exercise of legal arbitration, to be a Mockery of Justice at the Temple itself. Oh! Lord of Justice where art thou? It looks as if years of education to mould this society has been in vain. Please do not cry for me Sri Lanka, I weep for thee! I rest my case.

  • 6
    1

    These Rascals, Sirisena and MR. even sell their mothers to hung on to power. It’s time for the people to come on the streets like in France to chase out these dirty rascals, who wouldn’t respect the law and decency at all. The people’s power is the one and only one way teach this rascal Sirisena. In the beginning Sirisena said, he going to be the servant of the people but now becoming a master of them, wants to rule with decrees like a king and a dictator, and violating every decent human norms. He is extremely dangerous, and it’s high time to send him home. No two word about it. Period.

    • 1
      1

      Ranjith…. Keep your emotions in check.

  • 1
    0

    Excellent court reporting. Brief, to the point, and dare I say accurate. Let us not befoul such good work with inane comments.

  • 7
    6

    This is a highly biased, and therefore stupid report of what happened at the court hearing. Iswaran was lost for arguments.

    Any lawyer worth his black coat would see the respondents’ simple argument that dissolving parliament declaring an election is not a violation of fundamental rights of anybody, except the yahapalana rogues gang of PUK hamu who were robbing the Central Bank, selling national assets and undemocratically holding on to UNP leadership.

    So be prepared PUK hamu suckers to see your homo-idol flushed down on December 11.

  • 1
    0

    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. ////

    Parliament did not request by resolution passed by not less than two Thirds, this to mean no one body Idea,
    Many body idea, many body Ideas can no more flow backward than can a river. If one body is sick all are effected, Simple solution The way to get good ideas is to get lots of ideas, and throw the bad ones away.

  • 2
    0

    We, the lay-Lankans, can feel the dignity of court. Our trust and respect have been restored. We must not allow mistrust to seep in. If this atmosphere permeates into other arms of government, we can catch up on what we lost over seventy years.
    .
    Core values may be buggered but can never be killed.

  • 0
    0

    God Bless all the good Judges and lawyers.
    We respect you.
    Thank you.

    ………
    ‘ I’m a worldly Judge.
    I just do what the
    Constitution tells me
    To do.
    The only one of the
    Ten Commandments
    Relevant to the Judge’s
    Role, is to
    Tell the truth.’
    ( Justice Antonin
    Scalia).

  • 3
    0

    I like to see CT reproduce from the court proceedings Kanag-Iswaran’s argument and the scholarly presentation of the nuances of the constitution as reported in the Dailymirror. A reporting does not do justice to such a presentation though it gives the gist of the argument.

    The justices I am sure will give much thought to Kanag’s argument. The judgement I am sure will define our court system and the supremacy of the constitution. Knowing both Kanags and Sumanthiran I am sure they will be present in court. They are not what anyone can frighten. Truth and justice will prevail in the end.

    If I was the President’s advisor, I will advice him to withdraw his proclamation and appointment of MR as his PM now.

    • 0
      0

      S.S. Selvanayagam concentrated only on Kanaga Isvaran’s arguments. CT’s composer skipped it and presented others’.

      I agree we would like to see one and that is complete.

      May be CT can build a set up to report future important SC cases in that way.

  • 0
    0

    People surverginity is uppermost ,the president violated thier rights by his actions of dissolution.when the election voters were thoughts when casting thier votes for cartain period for parliament and they isolated and deprived exclusively by actions of executive power.

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    Dear CT readers,

    I had on many occasions brought to the readers attention in the comments column to the provisions of 16th Amendment regarding language of administration, language of courts and language of legislation where Sinhala and Tamil versions were conferred parity of status and English was demoted to thee level of translations.

    Now I am happy that K. Kanag-Isvaran PC and MA.Sumanthiran PC had referred to the importance of 16A that had resolved language problem to the satisfaction of all communities and which were not at all challenged by any of the communities or political parties in Sri Lanka.

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      Sri,

      From 1948 our Sinhala Mahajan, their Sinhala Intellectuals and Appe Aanduwas are doing one project that is, wiping out the Pariah’s Language Demulu and cleaning the Imperialist, Sudhu Colonialist’s Language Inggris, but no avail. Solomon West Ridgeway Dias’ sacrifice seems to not enough. The job is asking Ranil, New King, Old King, Vaalaiththodam, Lemon Puff Weeraya, Gammanpila, Communist Vasu Pakaya………..all’s sacrifice. Like true patriots, will they come forward and offer it for their Language? Or the discounted, special Holiday season price of a donkey is Rs500M for “Appe Namo Namo Namo mother Lankawe”?

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    Though not directly relevant to this, a news item elsewhere caught my eye. It is about an (absurd) decision taken by the President to appoint “selected” 25 LAWYERS as Judges. 25 indeed.
    The timing for this action warrants suspicion at a time where there are court cases questioning President’s controversial decisions. This is the same horse trading tactic going on in the Parliament.
    I think the sooner the verdicts are given, the better.

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    What implied by “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…… ” under Article 33(2)(c) can easily be recognizable as administrative powers.
    The word “expressly” is the key word that determines what powers, duties and functions this Clause talks about..
    Read this; “In addition to EXPRESSLY conferred or imposed on or assigned powers, duties and functions to the President by the Constitution…….”
    In other words;
    “In addition to (ADMINISTRATIVE) powers, duties and functions “expressly” conferred or imposed on, or assigned to the President (ELSEWHERE) by the Constitution or other written law, the President shall have the power – (c) to summon, prorogue and dissolve Parliament;
    PROVIDED THAT…………
    One need not to be a lawyer to understand this.

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      Champa

      I am glad to hear you too have qualified as a constitutional lawyer or expert on constitutions.

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      In my opinion, The words ““Unless Parliament is sooner dissolved……. ” in the Sinhala version obviously referring to the Motion that could be passed by 2/3 majority requesting the President to dissolve the Parliament.
      There is no time frame indicated in the Constitution to bring this Motion.
      Any time within the day 1 of the Parliament to the 4 1/2 years, this Motion can be brought to the Parliament.

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    Do you not see the dud argument that Sumanthiran has produced re Article 23(1) of the Constitution

    Quote- “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.”-end quote

    Sumanthiran was drawing attention away from the relevant part of this Article that applies to the constitution, its amendments and all Parliamentary Acts. It’s the old sleight of hand, hoping the judges will only look at what’s put before them by the counsel and not do any discernment on their own.

    The relevant part is the first para of Article 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 :”

    The second para which Sumanthiran highlights – “Provided further that in respect of all other written laws …”- refers to all other written laws except Parliamentary Acts, Constitutional Amendments and the original Constitution.

    Now let’s see how the first para of 23(1) applies to the 19th amendment.

    Did the Parliament , at the enactment stage of 19A determine which text shall prevail in the event of any inconsistency between texts? Bingo. Yes they did. CT reporter, open your 19th amendment, go to section 48 and read-: “In the event of any inconsistency between the
    Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.” (Sinhala text to prevail in the event of an inconsistency)

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      What about the articles in the present constitution that have remained unamended from the original 1978 constitution? (such as the Article 62(2), which is different in the Sinhala).
      What according to the current Article 23(1) is the position of those articles in case of inconsistency between texts?

      Quote- “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 :”-end quote

      Did the Parliament at the stage of enactment of the original 78 Constitution determine which text would prevail in case of inconsistency between texts? Yes they did. The original 78 Constitution’s Article 23(1) reads: All laws and subordinate legislation shall be enacted or made and published, in both National Languages together with a translation in the English Language. In the event of any inconsistency between any two texts, the text in the Official Language shall prevail.”

      And what was the Official Language as per the 1978 Constitution? Article 18- The Official Language of Sri Lanka shall be Sinhala

      So you see the present constitution of Sri Lanka by 23(1) decrees that all laws and subordinate legislation shall be made or enacted and published in Sinhala and Tamil, leaving it to the particular Parliament which enacts that legislation to mention in the relevant Act which language shall prevail.

      As homework, I like to set all the wannabe Constitution interpreters this exercise- go to SL Parliament website, download all the amendments to the Constitution so far enacted by the relevant Parliaments and see which language they set out as the prevailing language in case of inconsistency between texts.

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      Sumanthiran and lawyers like him belong to the old school where they believe that sleight of hand, misdirection of the judiciary will serve their purpose because SL is supposed to be an adversarial system. In this system the judges are supposed to only listen to arguments put forward by the two contending sides and adjudicate between those representations like an impartial referee. The judges (Sumanthiran and his school believe) will not do any investigations or discernments of the relevant Constitutional provisions on their own. But this is Constitutional interpretation and not a criminal case, where an adversarial system really applies. Here, the judges will read the constitution on their own and using their own powers of discernment, using the arguments put forward by the contending counsel as aids only. The judges will evaluate counsel’s arguments on their strengths, against the judges’ reading and understanding of the Constitution and not against the contending argument of the opposite counsel.

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      Critical Take,
      ” Sumanthiran was drawing attention away from the relevant part of this Article that applies to the constitution, its amendments and all Parliamentary Acts. It’s the old sleight of hand, hoping the judges will only look at what’s put before them by the counsel and not do any discernment on their own.

      The relevant part is the first para of Article 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 :”

      Please refer again to CT’s composer scripts. He has cited his yesterday’s draft where Kanaga Isvaran and Manohara traded bullets because Kanaga Isvaran had to explain the Supreme Court Internist Manohara that enactments and constitution are not equivalent. The Article 23(1) itself is para in constitution. It is not explicitly prescribing how it is going to govern itself. Think about a circumstance that Article 23(1) itself was different in all languages. Well then you and Udaya Gammanpila are going to say Sinhala Version Prevails. But does that make sense, even for you? The point you highlight is only saying to provide translations in all three Languages. But Article 23(1) is also telling a method, when needed, how to decide the Prevailing Version. That is the part Sumanthiran was dealing with. I hope it is clear for you now.

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        Enactments and Constitutions are the same. A Constitution together with its amendments start life as an Act. Thus NINETEENTH AMENDMENT TO THE
        CONSTITUTION is AN ACT TO AMEND THE CONSTITUTION OF THE DEMOCRATIC
        SOCIALIST REPUBLIC OF SRI LANKA
        Be it enacted by the Parliament of the Democratic Socialist
        Republic of Sri Lanka as follows:-
        1. (1) This Act may be cited as the Nineteenth
        Amendment to the Constitution.

        The 16th amendment to the constitution changed the provision in the original constitution that in the event of any inconsistency between texts [legislative texts] the text in the official language (sinhala as per the 1978 constitution) shall prevail. So after the 16th all constitutional amendment Acts mentioned in the Act itself, which language text shall prevail in case of inconsistency. So in the 17th amendment ( https://www.lawnet.gov.lk/1947/12/31/seventeenth-amendment-to-the-constitution-2/) says in Section 29, “In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.” Similarly in the 18th Amendment (which you can download from SL Parliament) section 37 says the same. In the pre-16th amendment constitution, it was mentioned in the text of the Article 23(1) itself which shall prevail- Even the original 1978 constitution was an enactment. It says in the introduction to chapter one of 1978 constitution -“We the freely elected representatives of the people of sri lanka… do hereby adopt and enact this constitution as the supreme law of the DSR of SL.”

        So forget this constitution is not enactment idea. This dissimulation and misdirection is so typical of TNA, the successor of the Federal Party, which was a grand master in constitutional misdirection.

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          You are trying to discount Kanaga Iswarn’s argument by your own interpretation of English. Manohara De Silva didn’t refuse to accept Kagana Iswarn’s explanation of the difference between the Enactments and the Constitution. He got it. That was the main reason he turned out to be wild. He saw his point was trashed even before it emerged. Enacting the constitution is not in same line with Enactments. “God” is not same with “god”; “Bank” is not same with “bank”; “Buttering” may not take the meaning of applying butter. Oiling the hand is only bribing a person, nothing to do with putting oil on the hand. English is like that; probably you are new to that. In that specific quotation “Enactments” take the meaning of laws and acts, but not Constitution.
          The case filed by Sampanthar was not in the capacity of “TNA”’s leader. You are trying to be pompous in your interpretation. Your interpretation of that and your outburst of blaming TNA lawyers of polluting the legal system is explaining how you are convulsing to twist in other things too. The case was file under the capacity of his “Opposition Leader”, who is opposing the governmental action of dissolving the parliament. The political parties (including UNP), NGOs and other individuals have taken the 2nd, 3rd order in that case. Kanaga Isvaran is not TNA lawyer. TNA Lawyer Sumanthiran didn’t appear for Opposition Leader.
          (Please read S.S. Selvanayagam’s narrations in Daily Mirror, where he is explaining Kanaga Isvaran’s “Ouster Concept”. With the name of interpretation, you can’t just insert something into the constitution that does not exist. –“Executive and Administrative” could not be read “Executive and Administrative only”. There is no general provision any lawyers cited is saying “Sinhala Version” prevails. If stated in the enactments of which version prevail then that prevails. In all other circumstances, the formula provided in Article 23(1) applies. That is the whole talk of the Article 23(1)

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    I see out in the media there are different versions of the court debates, including CT. Apparently, some of those heading are meaningless. For example the way Kanaga Isvaran’s objection combining Articles 38(2), 17 and 126 to the objection arguments of the respondents has not come out in readable form in media. Noticeably, CT’s composer, citing space, did not bring here the debate in detail. If the problem originated at media level, we need to assume that reporters’ legal capacity on the specific subject matter to clarify to readers may be a cause. Then it may be eventually clarified in detailed articles. If the Court Room too had encountered this problem, I think, by Monday or Tuesday Justices may call back the lawyers to clarify specific points.
    Further we saw first all three language medias reported 10th as the verdict date and then they all have now said no date is fixed.
    Judgement was expected today and some thought arguments may come to rest by yesterday. Judges had fixed injunction up to today only. Then they moved it to tomorrow. Now they postponed it to until the case verdict release. This certainly indicates the Justices envisaged an easy case but now it has ballooned larger than the expectations.
    My expectation was a light sparring between AG and petitioners’ lawyers. I didn’t see interveners entering the ring. This additional number of PC councils’ entry has made the case harder for the petitioners though their strategy of all 11 teams goes with coordinated attack on multiple points was a strong formula to inflict havoc on opponents.
    JVPyers and UNPyers expressed hope and Media reports that Slap Party is nervous about the verdict. But when Sumanthiran was leaving he looked tired but not very enthusiastic. He just said to Tamil reporters that arguments were finished and verdict is coming next week. Though the Friday ended in the calendar, it may still be continuing inside the Court Room.

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      Mallaiyuran
      I think the reason for not fixing a date for the verdict is to ensure safety and security of Petitioners, their supporters and lawyers.
      Though some people were critical about Judges being stoical and mere spectators at the threats hurled at Tamil lawyers by Manohara de Silva appearing for Respondents and also openly declaring that violence would take place if the verdict is in favour of Petitioners, I think they (the Judges) have taken due note of the gravity of the matter and that may be the reason for not announcing a date for the verdict in advance, in order to avoid premeditated violence by Respondents’ side.
      In my opinion, bringing racism to the Court is cheap.
      We have issues against TNA’s IDEOLOGY and their demand for a Federal Constitution. However, threatening and being aggressive towards TNA’s lawyers for them being Tamils and having different opinions that of Respondents is disgraceful.
      Our Constitution upholds rights and freedoms of every citizen irrespective of ethnicity, class, caste, creed or political orientation.
      Without a Constitution, people will act like beasts, bullying, discriminating, harassing and killing each other.. That is the reason the Supreme Court should take action to properly interpret the Constitution so that each and every citizen will feel safe and have faith that their rights are protected.

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    This argument about Sinhalese version having an extra sentence has nothing to do with the fixed term of Parliament.
    Let’s take an example;
    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.
    So 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 other MPs and lawyers is that the President has a right to crawl under the barrier and 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 driver’s 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 go home.

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    The thrust and parry and also Humour in Court between opposing Counsel and even Judges were a hallmark in our courts in the old days.G.G.Ponnambalam Q.C. George Chitty Q.C. E.G.Wickremanayake Q.C.AND a whole host of Counsel of an earlier era left this tradition.But alas Lawyers like Manohara De.Silva P.C.HAVE DESCENDED to threaten counsel rather than presenting their case with decorum.
    K.Kanag-Eswaran P.C began his career in the chambers of P. Navaratnarajah Q.C. and rose to be a sought after Commercial Lawyer. Today he has risen to be the foremost Constitutional Lawyer. The Bench could have censured Manohara De.Silva P C.for his outburst Perhaps,the Bench did not do so in view of the Political importance of the case and the fact that racism in the country is fairly well entrenched.The silence on their part would have also taken the wind off the sails of De.Silva!.

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    Uncivilised is Kanag-iswaran and Sumanthiran for Donkey arguments , unrealistic, theoretical only rather than intentions of the particular sentence in the application during the circumstances.

    In general, 19th Amendment is extremely poorly drafted under any circumstances because it as brought to reduce the Executive powers of the President but in effect, it has given more powers to the President due to poor drafting.

    According to me, Ali Sabry PC gave a scintilating performances in the oral submission.

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    Champa.

    The Predicament of President Sirisena as illustrated by your comment above is brilliant. It fits him like a glove!

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    It is astonishing to read Native vedda’s comment on language issue. It was a set back for
    3-4 generations, suffered with poor knowledge of English due to short sighted action of Politicians in addition to violence it led to. It is very pleasing and heartening to observe even Undergraduates are publishing in king’s English in CT. I am asking where would we be without English in this digital age. Even French and Japanese who refused to learn and speak English changed their attitude with their foresight of digital age was coming. In India with more than hundred languages learning English is a priority and majority speaks and it is the main language interstate.

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      chauvinist

      Does sarcasm mean anything to you?

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