In a shock move, a member of Sri Lanka’s independent Elections Commission filed a fundamental rights petition in Supreme Court yesterday, joining a dozen other petitioners in challenging the Presidential Proclamation dissolving Parliament and declaring elections as unconstitutional and illegal.
Prof. S. Ratnajeevan H. Hoole, a member of the three-man Commission set up by the 19th Amendment to the constitution told a three judge bench of the Supreme Court that he believed that the dissolution of Parliament by Friday’s proclamation was “ex facie” illegal – or bad in law on the face of it, and saying he was duty bound to ensure the constitution was honoured.
As the constitutional crisis triggered by President Maithripala’s shock sacking of his prime minister on October 26 entered its third week, Sri Lanka’s highest court became the epicentre of a pitched battle between the executive and legislative branches of the state yesterday as a spate of petitioners moved the courts against Friday’s midnight gazette dissolving Parliament.
A three judge bench of the Supreme Court, led by Chief Justice Nalin Perera, and comprising Justices Prasanna Jayawardane and Priyantha Jayawardane, heard out lawyers representing 11 out of at least 12 petitioners in a marathon sitting till almost 6PM. The sittings were held in Court Room 502 of the Supreme Court Complex, which was packed to the brim with lawyers, litigants, journalists and a host of politicians hailing from political party represented in the sacked Parliament.
The Elections Commission was cited as a respondent in several petitions filed in court yesterday, but EC Member Prof. Hoole filed his own case – SC FR 361/2018 – to clarify the legal position on the sacking of Parliament by the President. His Counsel told Court that while Prof. Hoole was “deeply conscious” of the need to maintain a degree of neutrality as a member of the Election Commission, but cited Justice Mark Fernando’s 1999 Supreme Court ruling in the Karunatillake Vs. Dayananda Dissanayake case, filed against the indefinite postponement of elections for five provincial councils in August 1998. At the time, the President had used the promulgation of emergency regulations to postpone the elections indefinitely. In that case, the Supreme Court seemed to fault the Elections Commissioner Dissanayake for failing to obtain a judicial order in order to implement election laws.
Counsel for Prof. Hoole, Attorney at Law Hijaz Hisbullah said the last page of Justice Fernando’s judgment had noted that while the Court appreciated the difficult position Elections Commissioner Dissanayake was in, it had noted: “ it is necessary to remember that the constitution assures him independence, so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections – even if necessary by instituting appropriate legal proceedings in order to obtain judicial orders. But the material available to this court indicates he made no effort to ascertain the legal position, or to have recourse to legal remedies.”
“My submission is that the proclamation that dissolves Parliament is ex facie illegal, because there is only one article in the entire constitution that allows for dissolution of Parliament by proclamation, and that is Article 70 (1),” the EC member’s Counsel argued. The President had avoided complying with that article when he dissolved Parliament, Hisbullah said.
Lawyer for the EC member said they were arguing “elementary matters of constitutional law”. “If Article 33 (2) can stand alone, when the President is being impeached, for violating the constitution or because he is mentally unfit – that he may still proceed to dissolve Parliament under 33 (2)?” Hisbullah asked.
Attorney Hisbullah noted that honouring the election result was also as important as holding elections and allowing people to exercise their franchise. “At an election all people gather to express an opinion. If we allow the President to dissolve parliament at any time, it says that the opinion of the President trumps all other opinions. There is one word for that, my lords – ‘dictatorship’.
The counsel for the EC Member also noted the urgency of granting interim relief to stay the election, saying the poll would be held at a great cost to the state. “The machinery has already started moving, and preliminary work to hold elections has begun,” he warned, saying the poll should be stayed until the court concluded determining the matter.
Attorney Hisbullah held with lawyers for other petitioners, that the President had embarked on a journey by making the proclamation, but he cannot do so without complying with Article 70 (1), which sets limits on his powers listed in Article 33 (2), by insisting on a resolution passed by two thirds of the House if dissolution is to take place by presidential proclamation before the stipulated 4.5 years of the Parliament’s term is complete.
The proclamation by the President refers to Article 33 (2) of the Constitution which gives him general powers to ‘summon, prorogue and dissolve Parliament’, but does not refer to the special provisions set out in the constitution – 70 (1), that sets limits on his powers to do so.
Many lawyers arguing for petitioners challenging the presidential proclamation explained that general provisions – like article 33 which sets out the president’s powers, are superceded by the special provisions in Article 70, which sets out the framework within which his powers to summon, prorogue and dissolve Parliament can be exercised.
Attorney General Jayantha Jayasuriya, who was cited in the petitions as representing the President, whose actions were being challenged in all the cases filed yesterday appealed for more time – at least until Wednesday – to make submissions. Chief Justice Perera initially adjourned the sittings from 12PM to 2PM to give the AG time to study the petitions, but AG Jayasuriya returned at 2PM saying he would require more time to “receive instructions” before arguing the case. Shortly before Court was adjourned, the AG asked for time till Wednesday.
The three judge bench denied the AG’s request for more time, even as counsel after counsel for the petitioners underscored the urgency of the question before the country’s apex court, and prayed for immediate interim relief. The Attorney General has been directed to present arguments at 10AM today, when sittings resume.
President’s Counsel K. Kanag-Iswaranappearing for Opposition Leader R. Sampanthan charged that Parliament could not be dissolved at the “whim and fancy” of the President. Article 62 (2) which sets out the Parliament’s term of office as five years, “unless otherwise dissolved” cannot mean that the legislature can be dissolved at the whim of the President.
“Article 70 (1) places limits on the power of the President to dissolve Parliament. It is a maxim in legal interpretation that special provisions will override general provisions. This is a simple thing. That is why my petition is only two pages. Everyone is on pins. The world is looking at us. Everyone has condemned this move. That is not my argument. But that is the reality,” the senior lawyer argued.
Kanag-Iswaran PC said it was only fair that the Gazette should be suspended. “The status quo will then resume. Parliament will reconvene day after tomorrow. And let Parliamentarians decide on their future. That is not a matter for the court to decide” he said.
He added that Article 33 is not a stand alone section but a section on general empowerments of the President– there are other articles in the constitution that legitimately influence its meaning and ambit.
“Five years is the norm. Anything less is an exception. Exception is prohibited in the constitution unless certain conditions are fulfilled, as stipulated in 70 (1) – two thirds majority resolution calling for dissolution or the completion of 4.5 years of Parliament’s term. “This gazette is illegal. It’s written in water. It has no force in law”.
“It is extraordinary that Article 70 (1) that deal that is staring us in the face, which provides the exceptions to 62 (2) finds no mention in the Gazette by the president. “This is the elephant that is missing in the room. Why has everyone ignored this? This is a convenient lapse of memory” Kanag- Iswaran PC added.
Appearing for Petitioner Champika Perera, President’s Counsel M.A. Sumanthiran sought to debunk what he said was a canard doing the rounds that the 19th Amendment bill that was gazetted did not contain the provisions limiting the President’s powers of dissolving Parliament. Sumanthiran PC said the Gazetted bill had it, and the Supreme Court which issued a determination on the bill did not even deem it necessary to pronounce on it.
Making a fiery submission, Counsel Sumanthiran said the term executive presidency was a misnomer after the enactment of the 19th Amendment.
“Executive power has been taken away from him. He is half the man that he was. He himself referred to the curtailment of his powers during the debate on the 19th Amendment in Parliament. When you look at Article 33, the powers listed are the powers of a ceremonial president, identical to the powers of the ceremonial head of state in the 1972 constitution,” he said.
Sumanthiran PC told Court that in President Sirisena’s proclamation dissolving Parliament the President had deliberately left out reference to 70 (1). “This cannot be oversight. In this whole merry go round, he does not touch on the very source of his power which is Article 70(1).”
“The order of dissolution is bad in law – incurably bad. And if the dissolution is bad, it is void and if that is nothing, nothing else can rest on it. So the contemplated General Election is unlawful. We don’t want an unlawful election,” Sumanthiran argued.
He added that if 70(1) has been ignored in the way it has been done, the very next day after a new Parliament sits – according to this gazette on January 17 – so on January 18, Parliament can be dissolved. “What if the President doesn’t like the face of the next Prime Minister or something else? Can that be permitted?”
Sumanthiran PC noted that Article 33 also gives him the power to prorogue Parliament. “I’m sure some people present in this court room wish the constitution stops with Article 33. But just because Article 33 (2) gives him the power to prorogue, can he prorogue forever? The limits on prorogation is listed elsewhere –that it shall be for a period of no more than 2 months – is in Article 70.”
Throwing his copy of the constitution down on the table with a bang, Sumanthiran PC said: “It’s unfortunate that we even have to argue this in court.”
Sumanthiran also argued that previous Supreme Court judgments have shown that each branch of Government is supreme in its own sphere. One cannot extinguish the power of the other. The three organs must act to give expression to the sovereignty of the people, they are interconnected but have checks and balances.
“The President cannot tomorrow extinguish this court. He cannot, but when people on the road ask us, we cannot say he cannot because he has already done this to the legislature,” he charged.
Two attempts by the Attorney General to delay proceedings by at least one day were denied by the Chief Justice.
Summary of submissions and hearing which took place today in the Supreme Court of Sri Lanka with regard to the alleged dissolving of the Parliament.
Presidents Counsel K. Kanag-Isvaran commences his submissions in SCFR 351/18 for Leader of Opp @R_Sampanthan. States that a proclamation cannot be made under Art. 70(5). It is only a consequential provision. Has to be under 70(1) which President has not done. He further explains that Article 33(2)(c) is only an empowerment and not a stand alone provision. There are other provisions in the Constitution that legitimately influence its meaning and ambit and they need to be followed.
Counsel Hejaz Hizbullah for 4th Respondent in same case (Prof. S.R.H Hoole – member of election commission) says that it is his duty as a member of the EC to uphold the law. Legal precedent requires him to seek legal recourse. Says the proclamation is ex facie bad in law.
Former AG Tilak Marapana commences submissions in SCFR 352/18. Says that EVEN IF 33(2) was a stand alone provision, the act of dissolution has to be done reasonably and NOT for a collateral purpose as @MaithripalaS has done since the 26th October.
Counsel @ViranCorea commences submissions in SCFR 353/18 for Centre of Policy Alternatives and @PSaravanamuttu. Says that the Right to Franchise of Voters of Sri Lanka are affected by this act, and asks for a stay order against the proclamation.
Dr. Jayampathy Wickremaratne PC in SCFR 354/18 explains the rules of Constitutional Interpretation. Must look at the intention of the framers of the law, and interpret the law harmoniously. Should not interpret 33(2)(c) in a way that conflicts with 70(1).
Counsel @MASumanthiran in SCFR 355/18 explains the separation of power; under our Constitution each organ of government is supreme in its own sphere. There are checks and balances between them, but one cannot extinguish the other in this manner. He says that the act of Dissolution is void ab initio. Therefore anything that arises out of it, such as the General Election in the Proclamation are illegal.
Mr Sumanthiran PC also points out that if 33(2)(c) was a stand alone provision the President could prorogue parliament indefinitely without abiding by the limitations in Article 70. He explains how reading 33(2)(c) this way could lead to major abuse of power.
After short adjournment court takes up SCFR 356/18. Mr. JC Weliamuna PC states that 19th Amendment increased the powers of Parliament, which has a direct mandate of the people. Reminds us that Lawyers take an oath to defend the Constitution at a time when sun is setting on it. Mr Weliamua also says that the position isn’t that Parliament cannot be dissolved before its term. It can, but the procedure needs to be followed, i.e. reconvening Parliament and getting the approval of 2/3 of members.
Presidents Counsel G. Alagaratnam in SCFR 358/18 says an Article of the Constitution cannot be read in isolation or in a manner that creates an absurdity. This would be the case if the President can dissolve Parliament the day after it is elected. He also points out the impact that this act of the President has had on the economy and the country as a whole.
Mr. Suren Fernando in SCFR 359/18 explains that Article 70(7) re calling a dissolved Parliament in an emergency only applies if there is a valid dissolution. Without such dissolution, Parliament can reconvene.
Presidents Counsel Ikram Mohamed appearing for @Rauff_Hakeem and others in SCFR 360/18 reminds court of Article 33(1)(a) which says the President is duty bound to ensure that the Constitution is respected and upheld.
Much awaited Petition (SCFR 361/18) of Memeber of Elections Commission Prof. Hoole taken up.
Counsel Hejaaz Hizbullah asks how Article 70(5) mentioned in Proclamation can stand alone in disregard of 70(1). He also says that the right to Franchise isn’t only about holding elections but also respecting the choices of the people made in elections. He asks for a stay order pending the final determination of this case because of the large cost of Elections.
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