Ever since it became clear that the Parliament could not meet by June 2, the presidential proclamation dissolving the legislature became invalid in law, because it was no longer in line with the Constitution of Sri Lanka, Attorney at Law Viran Corea told the Supreme Court on Tuesday (19).
Viran Corea and Geoffrey Alagaratnam
Appearing for petitioner Dr. Paikiasothy Saravanamuttu, Executive Director for the Center for Policy Alternatives on day two of the hearings in the case relating to the reconvening of Parliament, Viran Corea told the Court that the framers of the constitution had taken great pains to emphasize that a new Parliament must meet within three months of dissolution by the President,
The President’s powers under Article 70 (5) contained three mandatory duties, Counsel for Dr Saravanamuttu submitted. “To dissolve, set a date for election and to set a date for summoning the new Parliament,” Corea explained.
“Ever since it became clear that that the new Parliament cannot be summoned on the stipulated date, the dissolution proclamation has become invalid,” he argued. “The impugned proclamation is not in line with the constitution and thus it is void,” Corea said.
Warning of an “imminent danger” Counsel for the CPA chief said that unless the proclamation is held as void a dangerous precedent would be set, where a vital organ of the state would cease to function for over the stipulated maximum of a three month period, for the first time in history.
Corea urged the Supreme Court, which has the sole authority to interest the constitution in Sri Lanka, to grant leave to proceed in the case in order to prevent the constitution from being dismantled.
No special power is vested on the President of Sri Lanka to dissolve Parliament except the power subject to the restrictions stipulated in Article 70 of the constitution, the Counsel for CPA said, referring to the judgment made in the 2018 dissolution case.
He submitted that Art.70(5)(a) should be understood in a way that the discretion to call for an early election is subject to the condition that a new date is set to summon a new Parliament within 3 months. “These time limits are all components of the discretionary power to dissolve vested on the President,” Corea told the five judge bench of the Supreme Court
Explaining that the petitioner had come before the Supreme Court in order to protect the people’s right to franchise and their sovereignty, the Counsel argued that a free and fair election must be safe, adding that health experts had suggested holding an election under the present conditions was not safe.
“Until such time a new parliament can be safely elected, the functions of the Parliament must continue,” he argued.
Corea submitted that Articles 33A and 42 of the Constitution stipulates that the President and the Cabinet are constitutionally responsible to the Parliament. Parliament also has full control of public finance, Corea explained. “According to the terms of the constitution the functioning of the Parliament cannot be dispensed with” he asserted.
Appearing next for two petitioners, President’s Counsel Geoffrey Alagaratnam referred to the famous declaration: “The King is dead! Long live the kingdom” to emphasize the importance of the continuity of Parliament.
An election cannot be held by hook or crook, Alagaratnam PC submitted, it must also be free and fair.
The President’s Counsel asked if the Executive had made a responsible statement when he asserted recently that under no circumstances will he reconvene Parliament. “The essence of democracy is dissent, disagreement and debate. There is no democracy without dissent and shying away from it is not democratic,” Alagaratnam PC submitted.
When the constitution had provided for all things, there was no need to go beyond the constitution, he added.
Representing the Sri Lanka Muslim Congress Leader Rauff Hakeem who is also a petitioner in the case Presidnet’s Counsel Ikram Mohammed said that the dissolution proclamation has ceased to be valid, inoperative and cannot be carried forward.
Mohammed PC submitted that upon dissolution the Parliament continues, only the membership of members of Parliament ceases.
He argued that the object and duty of the election commission is to conduct free and fair elections. He also submits that to ensure the same is also the duty of the President.
“If the elections were held now, the lines at the polling booths would extend to more than a kilometer. Is that practical? Would we all be willing to stand in those queues? Can social distancing be maintained?
The Counsel for the SLMC leader said the Elections Commission had written what he called a “beautiful letter” pointing out that according to the constitution Parliament must meet by June 2, 2020 and in order to do so, an election must be held by May 27/28 at least but due to the pandemic situation, an election on those dates were not possible. “Even the election commission has foreseen that there might be a constitutional problem as elections cannot be held before the 2nd June,” Counsel for Hakeem noted.
He submitted that the President could have obtained an opinion from the Supreme Court, but he has not done that, and that is why these actions had to be filed. He pointed out that all applicable principles of law had been decoded by the Supreme Court in its determination on the 2018 dissolution case. “The Supreme Court is the final guardian of fundamental rights, and there is no other place for us to go. This is the Supreme Court’s solemn and sacred duty” he submitted.
Mohammed PC submitted that the President was also subject to the rule of law. “He is a creature of the constitution, and he is not above the law” the Counsel noted.
Proceedings will resume at 10AM on Wednesday (20) when respondents to the petitions will be heard. (By Chinthika de Silva)
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Mallaiyuran / May 20, 2020
They are purposely not fully challenging the EC’s “no authority”; Challenging like will help neither Aanduwa nor the Opposition. Whether EC had the authority or not, by putting the election date as June 20th, it forced the Dissolution and June 20th election both void. President might have thought if EC changes the date he can say “I don’t do nothing”. But it appears that equivocation may not help president this time as The Court would grant what opposition is asking for.
“Free and fair election” should be the mantra of the day in the court. The justices met at a special place to ensure they are protecting the hearing with proper social distancing policy. Will that not remind them to make sure the every citizen of the country should have that privilege?
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rj1952 / May 20, 2020
this is becoming an interesting court case.
the uncouth, uneducated criminal masquerading as an illegal kallathoni of a so-called war criminal president vs the polished refined petitioners and their much class oozing well educated refined team of lawyers.
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as this has become a court trial of very importance to the average Joe Blogg who whilst fighting the battles of the coronavirus thanks to the draconian tactics adopted by this ruling without a proper mandate sets of the world’s best ganankarraya’s are expected to play many a pandu of a bandu if the decision does not go their way.
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it should be the battle of the educated refined against the criminals who are mostly uneducated and sadly if it comes to a battle or two of fisticuffs the criminals will be the winners.
if it becomes a discussion the refined educated will be the undisputed victors.
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hopefully, the 5 judges of the highest court in the land will be those with a high degree of integrity will be men of steel and have the balls to give out an impartial judgement.?
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may the forces of democracy and freedom be the ultimate winners, as this country needs a breath of fresh air from all the unsavoury yokels, who are living in this once upon a time pleasure-giving island?
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Buddhist1 / May 20, 2020
Litmus test of the Sri Lankan Judiciary.
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Ajith / May 20, 2020
Election is part of the democracy and Parliament is the supreme of democracy. If the President and his political party is intended to change the constitution, they have to release the draft constitution to give full information to the public before electing members to the parliament. Previously, all thepolitical parties agreed to reduce the powers of executive Presidency which was promised by many former Presidents including Mahinda Rajapaksa. Based on that agreement people gave two third majority to make changes to the constitution. Now SLPP wants to change the constitution and wants to remove 19th amendment before telling the people what changes they are going to make. People should know what is good for them. Previous government made a proposal for a new constitution. Similarly, President should give a written proposal for people to decide.
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Andare 2.0 / May 21, 2020
The essence of democracy is to respect people’s mandate. The president is just doing that. He had promised to dissolve the rotten parliament during the presidential election and he kept his word. He’s not obliged to reconvene a dissolved Parliament no matter what. The president is not responsible for holding the election either , It’s up to the EC to do that. If the EC is unable to hold the election then that’s EC’s problem.
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