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).
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)