10 August, 2020

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President Vs. Parliament: Supreme Court Begins Hearings Today

For the second time in under two years the Supreme Court of Sri Lanka will be called upon to adjudicate on a thorny constitutional question with massive implications on politics and governance, as hearings begin on several fundamental rights petitions challenging President Gotabaya Rajapaksa’s refusal to reconvene Parliament.

A five-judge bench of the Supreme Court including Chief Justice Jayantha Jayasuriya will begin hearings today (May 18) on petitions filed by journalist Victor Ivan, the Centre for Policy Alternatives, the Samagi Jana Balawegaya led by Sajith Premadasa and several others on the complex constitutional issue.

Most of the petitions seek interim orders to quash the gazette issued by President Gotabaya Rajapaksa on 2nd March dissolving Parliament on the basis that the new Parliament cannot meet within the three month deadline mandated by the constitution since elections have been delayed till June 20 on account of the corona virus pandemic.

The Elections Commission earlier postponed the April 25 parliamentary election to 20th June, but the Commission will meet again this week to determine if the new date was feasible on account of the country still being partially shut down due to COVID-19.

As the government battled the spread of corona virus and parliamentary elections looked to be considerably delayed, calls grew for President Rajapaksa to either revoke the gazette dissolving Parliament dated March 2, 2020 or for him to use powers vested in him under Article 70 (7) to re-summon Parliament during a national emergency. Fears are rampant that the Rajapaksa Government is using the corona virus crisis to establish presidential rule without parliamentary oversight. On April 25th a collective of opposition parties provided a written undertaking to President Rajapaksa to assist his Government by passing funding and laws to fight the spread of the corona virus if he reconvened Parliament. Opposition parties maintain that Parliament has a key role to play during a national emergency and cannot be sidelined and disregarded as the Government spends public monies willy-nilly and imposes legally unsound curfew and quarantine measures.

The last time the Supreme Court was asked to intervene in such a politically charged constitutional question was when the country was in the throes of a coup orchestrated by President Maithripala Sirisena and Mahinda Rajapaksa. That case was also related to the dissolution of Parliament but was challenging the legality of the dissolution before the parliament completed 4.5 years of its term as mandated by the 19th amendment to the constitution.

The cases were filed by every single political party in Parliament with the obvious exception of the UPFA. When the three-judge bench led by Chief Justice Nalin Perera and comprising Justices Prasanna Jayawardane and Priyantha Jayawardane after two marathon days of hearings issued an interim order staying the illegally called election, senior lawyers called it the most monumental decision in the history of the Supreme Court had ever made. The decision of the court reinforced the principle that the country will not be governed according to the whims of the executive but that even the all-powerful executive president was subject to the final authority that is the constitution of Sri Lanka. The interim order allowed Parliament to convene and vote Mahinda Rajapaksa out as Prime Minister three times.

Chief Justice Nalin Perera subsequently appointed a seven judge bench to hear the petitions over three full days a month later. The Supreme Court decision in that case set the boundaries of presidential power out constitutionally and clearly, making it clear that the President of Sri Lanka did not enjoy untrammeled power to govern at his pleasure, and reinforcing the 19th Amendment provision that a sitting president could be taken to court to answer for his or her actions.

The cases shone a light on the steadfast and unassuming Chief Justice Nalin Perera, whose name will forever be inscribed in golden letters for his role in safeguarding Sri Lanka’s constitutional democracy. CJ Perera’s decision, together with his brother judges in November showed the judiciary the way during the worst constitutional crisis the country had ever seen.

Less than two years later a new Chief Justice must oversee a similarly complex case, if a somewhat less fraught political climate, legal observers point out. For Chief Justice Jayantha Jayasuriya this will be the first time his Supreme Court will decide on a matter that will resolve a constitutional tension point between the Executive and the Legislature. It is also the first time the Supreme Court has been called upon to be the arbiter in such a highly charged case during the Gotabaya Rajapaksa presidency.

The court’s most senior three judges – Chief Justice Jayasuriya, Justices Buwanekha Aluwihare and Sisira de Abrew will all hear the case, together with Justices Priyantha Jayawardane and Vijith Malalgoda.

Lawyers for Gotabaya Rajapaksa argue that the pandemic is an extraordinary time and in such times states must adopt the doctrine of necessity as they seek to govern and navigate a crisis. Lawyers for civil activists and the opposition parties are likely to argue that the supreme law of the land cannot be suspended arbitrarily even during an emergency, because the framers had sufficient forethought to provide for emergency situations in just such cases when the constitution was drafted. (by Chinthika de Silva)

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Latest comments

  • 26
    4

    Where do you think the Kangaroo Courts loyalty is specially in an military state.

    • 9
      2

      Burt,
      It is a possibility. A war between conscience and threat.

      • 1
        5

        Ajith / Burt,
        .
        This is a war between democracy and authoritarian.
        .
        A popular president who was elected in a free and fair election wants to conduct election on time.
        .
        Authoritarian “yahapalana” setup supported by paid Civil Society cover-ups who shied away from every election trying to run away from general election.

        • 4
          1

          S. C. Passqual

          You do appreciate the fact that Hitler, Mussolini, …. were elected in democratic elections in the first place. In 2002 Saddam Hussein was elected by 11,445,638 votes 100% in the presidential referendum.
          However Gota managed to receive only 43% of eligible votes while 57% voted against him.
          Pathetic !!!!!!!!!!!!

          • 1
            2

            Mr. Native Vadda,
            .
            I am replying one of your earlier comments which I couldn’t find now. (Sorry I don’t have time).
            .
            There you tried to imply that “fact that Hitler, Mussolini, …. were elected in democratic elections in the first place. In 2002 Saddam Hussein was elected ‘“ so and so……….
            .
            I thought you are better informed than this……….
            .
            Both Hitler and Mussolini were not elected heads of states.
            .
            Hitler’s Nazis lost both July and November 1932 elections.
            They won only 33 percent of the vote.
            Knowing they couldn’t gain majority in a democratic election Hitler agreed to form a coalition with conservatives.
            The president of Germany, Paul Von Hindenburg, appointed Hitler as a chancellor of Germany in a government dominated by conservatives on January 30, 1933.
            .
            NOT IN A DEMOCRATIC ELECTION BUT BY APPONINMENT.
            .
            When Hindenburg died in 1934 Hitler assumed the presidency which he combined with the chancellorship to become the Führer und Reichskanzler.
            .
            Rest is History.

            • 1
              2

              In the same tone……
              .
              In 1919 Mussolini’s “Fasci Italiani di Combattimento” stood in a general election but lost.
              Mussolini was arrested for collecting arms to overthrow the government but was released next day.
              In 1921 election “Fascists” won but Mussolini was just a deputy in the Parliament.
              In the end of 1922, Mussolini threatened to take control of the government through violent force if it was not handed over.
              The sitting government was slow to act and “Fascists” seized control of some local governments.
              Refusing to pass martial law, King Victor Emmanuel III allowed thousands of armed Fascists to enter Rome.
              He dissolved the government and asked Mussolini to form a new one.
              That’s how Mussolini became Prime Minister.
              ..
              NOT IN A DEMOCRATIC ELECTION BUT BY APPOINTMENT.
              .
              On July 25, 1943, Mussolini was voted out of power by his own Grand Council, arrested and sent to the island of La Maddalena.
              Hitler ordered German forces into Italy,
              Transported Mussolini to German-occupied northern Italy,
              And was installed as leader creating the Italian Social Republic.

              • 1
                2

                Sadham Husain came to power in a election?……… You kidding me.?
                .
                By going through this………
                You will find that RW is more like above characters.
                .
                A person…
                Who couldn’t come to power on his own…..
                A person….
                Who couldn’t face elections alone…..
                Tried to manipulate minorities to come and stay in power…
                Tried to manipulate constitution to stay in power…
                Tried to manipulate election system to come and stay in power…
                There are lots of similarities….

  • 19
    15

    A man with an intense passion to save the country from disaster, emerged soon after the stage-managed debacle of the Easter Sunday carnage. A reluctant hero, somewhat shy of the spotlight, emerged, with two brothers flanking him. One an avid campaign manager who knows the pulse of the people, and another a veteran third-world politician with loads of experience. Whether the man will retain his no-nonsense style and reject the overtures of the siblings, or whether he too will become a seasoned political game player will be seen in how these crises will be handled. As usual, the masses gape in awe with hope lit in their hungry and battered eyes for a miracle to deliver them from misery.

    • 21
      3

      Thank you – Mr Pathiyagoda.

      Third world politician – as you said should finally leave srilanken politics for the betterment of the masses. Then only a man who got elected from “non-politics” could take proper decisions. But if the candidate would do all harm only by appointing millitary men as the leaders, he should not be kept further in his seat as the president of this country – alone the position lately announced as the ” secretary to MINISTERY of HEALTH” was made seeking advantages to their political camapaign ahead of them now. That was not to provide better services to the people. How many among the senior men in that ministry would have gone – speechless by being unable to this MISTREATMENT….. so is the case with also other ministries.

      Becoming a president through democratic means , but to SHOW THE POSTERIOR to the very same nation, not being able to respect the CONSTITUTION is a punishable act be it in SLANKA or any other country of this planet. basta

    • 17
      1

      History is replete with the example of ambitious men who in the begining might
      have been naively perceived as (to use your own words) ” a reluctant hero” with a “no nonsense style” having a ” passion to save the country from disaster” – but turned out to be ruthless tyrants with a contempt for freedom, justice and the rule of law ; reminding us of Lord Actons timeless warning “Power corrupts, and absolute power corrupts absolutely” !

  • 14
    3

    I have a gut feeling that these lots of 4 honourable judges will be impartial and will be instrumental in giving out the right verdict.
    =
    this kallathoni of an illegal president is already on his way to make this sad till now democratic isle into one which had already begun to be ruled and run by his fellow military murdering of the innocents goons.
    =
    let’s hope that the parliament will be reconvened and the 2/3rd desperately seeking vagabonds will have their ? chopped off.

  • 21
    3

    “Lawyers for Gotabaya Rajapaksa argue that the pandemic is an extraordinary time and in such times states must adopt the doctrine of necessity as they seek to govern and navigate a crisis.”

    It is true that the pandemic is an extraordinary time but there is no necessity to adopt the doctrine of neccessity to govern and navigate the corona crisis. This can happen only when all other democratic possibilities are unavailable. Previous parliament was entitle to govern the country until September 2020. That parliament was selected or elected by the people according to the constitution lawfully and there was no necessity to remove the parliament by a president who was elected based on the same constitution. President may like to change the constitution but until another parliament is elected he has to follow the rules of this constitution on which he took oath. Respect the law of the country.

  • 6
    13

    “In times to come people will not judge us by the creed we profess or the label we wear or the slogans we shout, but, by our work, industry, sacrifice, honesty and purity of character”
    .
    Mahatma Gandhi.

    • 16
      1

      You are right SCP.
      sacrifice: Who sacrificed? The people, not Gota family who ran away when it was needed.
      Is Mahinda Family Honest and purity? No. Liars

      Can you compare Mahathma and Lord Buddha with a murderer.

    • 1
      1

      SCP
      I am amused.
      Why do some people give thumbs down to a seemingly sound observation by Gandhi because you cited him?

  • 19
    2

    Dear Readers,

    Good morning from Berlin ! Today is a beautiful day after a nice weekend.

    With all what we considered in mind, I believe SC would see it exactly as the world recognized constitutional analysts made it very clear, that there is no other wayout than reconvening the parliament and see it further.
    :
    Those who questioned, as to why the opposition donot want to go to the courts on this matter, is now behaving like crabs in hot water. Rambukwella – one another most abusive man of the previoius MR regime had the termirity to question – repeating ” why not”. That Susil Premaa Jayantha the Silva failed in the SATANA or FACE to FACE discussion rounds telecasted by SIRASA lately, but their self congraduations and pleasers never respect the constitutional provisions..

    If a candidate sworn in to protect the CONSTITUTIONAL provisions as stated in it, it should NOT be violated. If he has doubts, better to allow open discussions not to that manner his BROTHER – Srilanka Muagabe aka Mahinda Jarapakashe (Konde baendapu cheena) did, but be STRAIGHT forwards and give his voters a feeling that GOTA is unique. However, leaving all aside, there is nothing GOTA has succeeded sofar to be PRAISED with ” WOW effect”.

  • 22
    3

    “A man with an intense passion to save the country from disaster, emerged……….” I would rather say a man with a sole intention of saving his family and him from prison/gallows got 69 lakhs of idiots’ votes.

  • 18
    1

    The fate of the country purely depends on 5 supreme court judges. Democracy, Communal harmony, Economic growth and the future of the country depends on judgment by SC. Prominent lawyers are arguing the case. I wish the voters are aware of the development of second constitutional crisis and will decide in the voting against those who fan ethnic hatred and military rule. A wrong decision will destroy the country

  • 22
    2

    Judges must remember there is a thing called judicial precedence. If the verdict favours Gota this time, the same judgement will be used by a future government to the disadvantage of a Rajapaksa. The world is watching. Do not make a mockery of SL’s courts.

    So give the correct verdict without fear.

    • 7
      0

      Unfortunately, the arrogance shown by the present regime is a strong signal that they do not care about the rest of the world, and there is no rule of law, nor respect for laws in Sri Lanka. Judges have been removed for political reasons, and replaced with puppets, who will rule in favor of crooks and dishonest politicians. It happened the last time they were in power, and it will continue this time too.

      Sri Lanka is unfortunately on the path of no return, where Judges, Lawyers, Election Commissioners, Military leaders, even racist television stations, have circled around this regime, maybe under duress, threats, bribes, or blind loyalty, and will not only do the bidding of the Rajapaksas, but will be willing to break any laws, to ensure the crimes of the Rajapaksas will be covered and not see the light of day.
      Who has any confidence, the SC will rule without bias or do the right thing for the country?

  • 8
    0

    Why 7 member bench was not appointed as in the previous case? Why not a single Judge from the minority group has not been appointed to sit on the bench? This case would be the litmus test of the Supreme Court’s Judicial prudence. Based on the judgement of this case SL Judiciary will either be considered as a “Protector of Justice” or a “Slave of the Politicians”.

    In a country where there are at least more than 1/3 of the population representing the minority community, its very unfortunate the Supreme Court Judges do not represent the mix of the country population.

    • 2
      0

      Buddhist,

      I believe the doctrine of necessity of the respondent is out, here. At least majority of the judges will not accept that argument. It doesn’t mean the King is losing the case. Judges can circumvent by other arguments. The attorneys are yet to present the case. They may pick up something there or even invent their own. The losing is also not a big deal for King. He can wait to hold to hold the election, provided Covid-19 not carrying out another conflagration. Then the 2/3 is still there for him.
      There is nothing parliament can force on him further, though. Unlike October 2018, here president need not to bother about anything. There is nothing to send him to prison after his term ends. If anybody has to go to prison, it is EC members, who messed up with the date of parliament reconvening before June 2nd, which the president had set up as May 15th duly. EC also only changed the Election Day, didn’t do anything with the parliament reconvening day. President, Secretary & EC, they all wisely stayed out of meddling with that.

    • 2
      0

      If King loses the case he can, on the same proclamation, cancel his earlier dissolution and declare the new dissolution. That is not prevented anywhere in the constitution. After all there is no method prescribed to recall a proclamation on this circumstance. He is going to be forced to do that only to satisfy the Constitution obligation, i.e. his responsibility of ensuring the parliament is meeting back within three months.
      He may say in the proclamation that he is recalling the earlier gazette notification on “May 31st” and dismissing parliament again on “June 1st”. There is no need to meet parliament even one day. Constitution is talking about parliament reconvening day, not any activity on the reconvened parliament. So earlier parliament remaining not dissolved for one day should satisfy that matter. (The MPs of the old parliament has been deprived of all their status. If he gives even symbolic one day for them to push the dissolution date to match with new reconvening day, then their privileges has to be restored from the day they went home, including their pay. It is the Speaker who has to take care of those matters.) Certainly King, Old King, Karu & Justices will talk secretly about these, though leaving the public to believe the judgement was independent.

  • 5
    0

    I EXPECT each of the Judges to come to the “BENCH” with an open mind saying to themselves: ” I DON”T KNOW”. Equipped with that frame of mind, they will be able to listen, evaluate, and decide,”INDEPENDENTLY” what is “RIGHT” and “WRONG”. Note: In saying “I don’t know”, I don’t mean to say that they are “uneducated” of the subject matters, but means “unbiased” and “clean” of all types of affiliations, such as political and social relationships. In either way the “Decision” goes, it will be added to as one among many “Land Marks” of our Judiciary.

  • 1
    0

    Jeyam Jeyam was consulted twice by New King as AG, and both time his consultancy was wrong. The case of coup-2018 was a negotiated settlement by Ranil and Old King. It was Ranil’s idea to go for quo warranto to save Old King & New King from being deprived of civic rights. After talking to Ranil Old King quit, blaming the injunction and not allowing them to act. Then Ranil forced the 125 MPs who filed the quo waranto to abandon it. Before that Old King said his wife would like giving up the PM position. Media wrote Old Beauty Queen threatened Old King that she will commit suicide if CID forced her to appear in courts. ICRC IRCs had donated a jeep to murder Thajudeen. Old Royal family maneuvered the coup to save Royal Family out of that murder case. It was Ranil who spied against Western embassies’ envoys to support Royals. That time an international sanction was imminent against Old King’s premiership.
    New King said (injunction was treated as a loss to New King though Old King escaped prison) he consulted best lawyers meaning Jeyam Jeyam but SC & CoA played foul.

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