13 August, 2020

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Headed For Constitutional Deadlock: Sumanthiran Says Presidential Proclamation Dissolving Parliament Invalid

By declaring June 20th for the 2020 parliamentary polls, the Elections Commission appears to have set the stage for the courts to intervene in order to resolve a knotty constitutional question about the life of the current Parliament.

M.A Sumanthiran

Senior lawyers like former TNA MP M.A. Sumanthiran PC are arguing that the new election date, being three months after parliament was dissolved on March 2, 2020, renders the presidential proclamation dissolving Parliament invalid.

Overruling Government preferences for a May election, the Elections Commission yesterday declared that the parliamentary election would be held on 20 June.

Sumanthiran PC explained that while there was no prohibition on the Commission to set a date of their choice according the Parliamentary Elections Act, there was clear constitutional imposition upon the President that he can no longer fulfill due to polls being delayed beyond June 2, as a result of COVID-19.

Article 70 of the Constitution imposes a strict condition on the President when he chooses to dissolve Parliament by proclamation 4.5 years into its term, Sumanthiran PC told the talk show Face the Nation on Monday night.

He explained that the President could dissolve Parliament by proclamation but the same constitutional provision that gives him the power to do so, mandates or compels him to fix a date for the new Parliament to meet no later than three months after dissolution.

On June 2, 2020 that constitutionally mandated deadline expires.

“If the three month condition cannot be met for whatever reason, the President’s proclamation becomes invalid because the President is only allowed to dissolve parliament under that strict condition because the country can function without a Parliament for no more than 3 months,” the former TNA MP from Jaffna said on the Monday night talk show.

He added that Article 70 of the Constitution permits the President to change the election date if necessary through another proclamation, but even date that must adhere strictly to the three months condition for Parliament to meet after being dissolved.

The new election date set by the Commission therefore renders President Gotabaya Rajapaksa’s March 2 proclamation ineffective said Sumanthiran PC.

Pro Government lawyers however counter-argue that the corona virus battle is an extraordinary situation that the constitution does not make provision for. These lawyers are arguing for the adoption of the “doctrine of necessity” to deal with the looming constitutional deadlock, although they stop short of advocating for the constitutional provisions pertaining to the question of the life of parliament be suspended while the President deals with the pandemic.

Others like pro-Rajapaksa monk Athuraliye Rathana Thero are calling for elections to be put off by six months. During that time, Rathana Thero argues the president and the caretaker government must rule through an executive governance council without a parliament.

Constitutional experts warn this would be a slippery slope to establishing executive rule or a dictatorship in Sri Lanka on the back of the pandemic.

Colombo Telegraph learns that it was due to this constitutional condition that Parliament must meet within three months that on April 1 when it realized elections could not be held in May, the Elections Commission urged President Gotabaya Rajapaksa to seek an opinion from the Supreme Court.

However the President, replying through his Secretary P.B. Jayasundera, retorted that there was no need to seek an opinion from the highest court, since the Government saw no reason why the election could not be held by the end of May 2020, paving the way for Parliament to sit by June 2.

Now by declaring elections on June 20, the Elections Commission will force petitioners to go to court to resolve the issue. It has by doing so, absolved itself of the responsibility of dealing with a knotty and controversial question that could set the country on a grave constitutional collision course.

The 19th Amendment, Sumanthiran pointed out during the talk show, permitted any citizen of the Republic to petition the Supreme Court to challenge an action or inaction by the President. In this case, a legal challenge could be mounted on the basis that President Rajapaksa is not acting to rescind his gazette dissolving Parliament. Responding to a question, Sumanthiran explained that a citizen could file a petition electronically and the courts could decide to hear the matter based on how urgent it might be.
Courts are presently closed as the country contends with preventing the spread of the corona virus.

Meanwhile President Gotabaya Rajapaksa in a pre-recorded interview aired across the networks on Monday night, completely ruled out the idea of reconvening the old Parliament.

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Latest comments

  • 3
    21

    Saboteurs, Sumanthiran and many more ganged up in 2018 October too to destabilize the country,. Sri .Lanka is a small Island can not allow this anymore. Need to decide. Say constitution is not useful anymore.

    • 7
      0

      Small Island President, is he a Sri Lankan Citizen?

    • 6
      0

      I think we all know very well that it was Mahinda Rajapaksa who colluded with Maithripala Sirisena to make a mockery of our democracy and destabilise the government. We paid the prize to the Easter attacks. The Rajapaksas once again had blood on their hands. The fools just couldn’t or perhaps refused to see it.

  • 5
    24

    Constitution is not the only option or pieces of papers to run Sri lanka if Saboteurs, sumanthiran and others to destabilize Sri lanka. COVID-19 is a blessing in disguise. Just do not waste money, time and all other resources because of some people want to wreck it,. Sri lanka faced so many. It is now worth while to accommodate for ever. Pabakaran also tried every trick in the book.

  • 4
    18

    Even Parliaments of other countries, as they can not prorogate the parliament, they keep physical distancing by reducing the number of MPs attending the sessions at a time. In Sri Lanka, they mark the register and go to do private businesses. Besides, if it were to reconvene, there will be so many STATE FUNERALS (FOR MUSLIMS) and STATE CREMATIONS as most are very old and health wise very weak (big stomachs, high cholesterol, some are Kuddas or Drunkards etc.

  • 5
    0

    Constitution, Virus , economy or all of the above , whatever may be the crisis we may be facing and all the discussions and debates taking place right now around these issues, my prediction (call me naive or foolish but let me be the first) is things will take place as planned by our criminal politicians. In 3 to 4 months time the Covid situation may be under control but Lankans will be stepping into much virulent epidemic called “Political Pandemic”. As we know, the Virus usually runs its (some what predictable)course and burns out but “political pandemic”is not only unpredictable ,there is no such testing, tracing or social isolation, which can help in containing its spread. The pain and suffering will be much more excruciating and here to stay. As in any pandemic it is the people who carry ,spread and enable these political parasites. Whether the outcome will be same in USA ,is anyone,s guess.

    • 1
      3

      Going by the past, the outcome in the USA is more likely to be worse.
      See how the Democratic party undermines the democratic process in nominating the presidential candidate.
      An electorate that can elect the likes of Nixon, Reagan and Trump is unlikely to be very bright.

  • 3
    1

    Any citizen can petition the SC to rule on the decision of the EC. Why does not those legal persons who are citizen and who critique the EC decision petition the SC. If they don’t want to, is it because the SC may condone the EC decision?

    • 1
      0

      Dear Ethir, why should supreme court go against the decision of election commission when it was taken within their legal parameters. According to the constitution it is the election commission that can decide on the date of the elections, not the president nor all members of parliament together. What they should petition supreme courts is that since elections has been fixed for 20th June, neither the caretaker cabinet can function after that date, nor the president take any actions without a functioning parliament, and therefore to get them to order re-summoning of parliament until it is feasible to hold an election after controlling the epidemic fully. Elections commission has the power to postpone the elections further if it is not conducive to hold election due to the epidemic is still raging. Since last parliament was dissolved prematurely, there is provision that the parliament be allowed to go on to complete its full term, elections held and new parliament put in place by 2nd September.

  • 4
    0

    good old 70 yeas of Sri Lnaka politics mirrored here in CT
    when Tamils are against Tamils and …all Sinhalease are against Tamils.
    what chance for Tamils
    when will the Tamils realise?

    • 0
      5

      All Sinhalese are against Tamils? How come the Sinhalese allowed Sampanthan to become the lader of the opposition with only a baker’s dozen of MPs, and let Sumanthiran, Jayampathy and his sinhalese friends to write an Oru Mitta constitution with the now notorious 19th amendment. How come Ranil has always been splitting the Sinhalese to kiss Prabhakaran’s hand.? How come all tamils gang up to crush the Muslims who were the majority residents of the Northern peninsula when SL becomae a crown colony?

  • 0
    0

    The learned lawyer Mr Sum did not go to courts to rectify “inaction” of the previous president

  • 0
    0

    SJ, it is always advisable to “clean own house” before pointing fingers at others. Dont you think so ???? USA is overly confident about their ability come out of any number of inferno ,to rebuild their country , but are we in the same comfort zone ???? For every Nixon, Regan and Trump they also had Lincoln, Clinton and Obama. We may fool the public by comparing with South Korea, just to conduct a SHAM called election but that will not stop us from stepping into a burning hell. Going by the same past, (you mentioned) I stand by my prediction not 100 but 200 %. You seems to have missed the forest for the trees.

  • 5
    0

    I read a news item in a Tamil paper that party leaders after discussion with EC agreed that elections will be postponed until COVID 19 epidemic is fully eradicated. The constitution is very weak in dealing with a situation such as COVID19. What if there is an Earthquake or Metroid hitting the island ( Not the April 29 Metroid) or Indian ocean South of the island. All these are possible and cannot be overruled. Sri Lankan politicians should not abuse the COVID19 epidemic situation to establish a dictatorship and swindle the money they country ( Like Helping Hambantota) receive from many countries to fight the virus. Egoism in the president will not solve the crisis. The life of people is more important than power. In many comments, I noticed that some have criticized Sumanthiran as one of the leading lawyers because he is a TNA politician. Give due credit to expertise, efficiency and do not be jealous. When he appeared for a constitutional crisis created by former President in October and did well, the Singhalese clapped hands. This is a selfish attitude of the Singhala community.

  • 0
    0

    To the Editor,
    Questions around the legality of the dissolution of the previous parliament are the result of the powerlessness of all institutions of the government to hold parliamentary elections in the middle of a pandemic. To conclude that Gota anticipated the development of the virus in the manner it has, well before the dissolution of the parliament is to credit him with a level of intelligence only few people would be endowed with.

    The manner the majority of the commentators link the present constitutional crisis to other non-related considerations is evidence of the unwillingness of such a majority of CT readers to accept Gota won the elections.
    Gota is the duly elected President of Sri Lanka. There can be no argument about it although all Sri Lankans are entitled to their opinions on the integrity OR the lack of integrity in the manner the election campaign was conducted.
    As I have previously noted elsewhere, there needs to be a way forward to resolve the issue of holding elections. We cannot find Gota to be responsible for the current impasse. He dissolved the parliament as provided for in the Constitution. Teresa May dissolved the parliament at the time of her choosing (which turned out to be wrong!) to seek a clear majority for her version of Brexit. Gota’s decision is no different.
    It is a reasonable proposition to consider that the 7 million people who voted Gota, would be totally opposed to recalling the previous parliament. Such opposition would render recalling the previous parliament as an activity that does not reflect the will of the people. This argument is valid, notwithstanding the early dissolution of the previous parliament.

    • 5
      0

      Sunil Abeyratne,
      You are right, Gota is the duly elected president but Mahinda Rajapakse or other cabinet ministers are not duly elected prime minister or ministers by people of Srilanka. We all remember in 2018, former President Sirisena appointed Mahinda as Prime minister ( whether it is after threatening Sirisena or otherwise) and the people decided to get the opinion of the judiciary and Court based on the constitution decided that appointment as illegal. In reality, that was a constitutional coup by Sirisena and Mahinda. Rule of law is the fundamental of democracy and the constitution is the supreme and Supreme Court is there to decide whether the govt or president act according to the law. You and I can’t decide whether Gota is an intelligent person or not. Corona is not over to judge whether it is efficiently handled or not. Further, in politics Politicians change their mind frequently and people also change their mind frequently depending on the situation. For example, Mahinda who won 2010 presidential election using the defeat of the LTTE but he lost in 2015. So, you cannot say the 7 million voted him will remain the same now or next year. Gota was responsible for number of murders in this country including Lasantha, Do you think he will not do the same again?

  • 0
    7

    Sumanthiaran Abraham is official may, not be unofficial representatives Tamil political Parties legal leader of Parliment by that anti- Estanblismnt proxies of Tamil homeland ?
    He seems to be successor of LTTE & Tamil Diaspora’s leadership of Legal face-cut in Parliament. Believe it or not that he is front line playing role,which against Sovereignty Nation of Island. He has undertaken that task of undermine nation stability .
    This is a under- covered operation by rise Tamil Homeland by TNA’s flag.
    The aim of entire operation was nothing else to be reconve invalid Parliment again. Sumatharan is undertaken legal task on behalf of JVP UNP MC and other Terrorist out fits to restoration of Chamber! by $$$.

    • 3
      1

      Gulsiri,
      What a praise for Sumanthiran? Are you working for CIA? JVP, UNP, MC are terrorists for you? So, all those Sinhalese voted for these parties are terrorists? Are you going to kill those Sinhalese who voted for UNP?

  • 1
    0

    KASmaalam K.A. Sumanasekera

    “Can I please adopt it instead of Keselatta Kid…..”

    NO, as great philosophers said many many moons ago, “DO NOTHING”.
    Just watch the clip below:

    Kumudu Megasooriya on
    The secret of Singapore‘s success ~ Kishore Mahbubani
    Meritocracy, Pragmatism & Honesty are the pillars which led to a radical and extraordinary transformation of Singapore from a third world to a first world in one generation.

    (1) Meritocracy- Appointing government officials based on competence rather than affinity
    (2) Pragmatism – Adopting best practice ideas and fitting them to the local environment and
    (3) Honesty- Being relentless in weeding out corruption, and retaining public servants whose integrity and conduct is beyond reproach.

    Interview with Kishore Mahbubani (Professor in the Practice of Public Policy and former Dean of the Lee Kuan Yew School of Public Policy)

    https://www.youtube.com/watch?v=mJUkJKUx3Vo

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