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)