22 September, 2020

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Sumanthiran, PC Is Based On Politics, Not On The Constitution

By Mahinda Pathirana

Mahinda Pathirana

A school of thought headed by Mr M.A. Sumanthiran PC, former MP TNA has suddenly emerged to claim that “with the decision commission made today (20th April) with regard to the election date, the presidential proclamation dissolving the parliament has become ineffective”. The senior lawyer argues that the time period of three months to summon the new parliament with a fresh mandate has subjected the President to a “strict condition” by the article 70 of the constitution. Elaborating on the ‘condition’, former MP says, the “Article 70 of the constitution imposes a strict condition on the President when he chooses to dissolve parliament by proclamation 4:5 years into its term.” (21st April 2020- Colombo Telegraph, later on Daily Mirror dated 24th April 2020). The counsel states that “the condition cannot be met for whatever reason, the Presidents proclamation becomes invalid.”  

It is true that the article 70 of the constitution states that, upon the dissolution of the parliament by the President through a proclamation, he/she should summon the new body of legislature no later than three months. But, I am still trying to find out the provision in the constitution that invalidates the gazette notification of the president dissolving the parliament, if the so called ‘condition’ put forward by the article 70 of the constitution is not met. Let me come to this particular point in detail in the latter part of this article. 

Mr Sumanthiran seems to particularly base his argument on the premises that, only when the President dissolves the parliament before the completions of its full term, in this case, 4:5 into the term, the so called ‘strict condition’ applies to him (the President), in the absence of such conditions being not met and, as a result, the auto-validation of the old parliament takes place. 

The first challenge to this argument is the non-exclusivity of the three month period only to the article 70 (5A) of the constitution. It is written there in no uncertain terms that the period of three months equally applies to both scenarios; dissolution by proclamation (article 70) or organic dissolution or dissolution of the Parliament by virtue of paragraph 2 of the article 62 of the constitution. Therefore, the period of three months cannot be considered an exclusive condition to the President dissolving the parliament by a proclamation. Hence, the very base of Mr Sumanthiran’s argument gets uprooted.  

Further, it should be stated that there is no such thing as strict conditions in a constitution, as all the provisions of a constitution are generally supposed to be adhered to. They are either followed or violated. No privileged adherence or violations are existent. Under some circumstances, there is guidance to follow enacting some powers by the President. The limiting of the President dissolving the parliament not later than 4:5 into its term is one such case.  And, at the same time, it is common sense that the three month period is not a condition put to the executive at all from another angel. If it is a condition, the authors of the constitution should have explicitly stated the scenarios where the so called conditions are violated, and what happens next. We do not find such provisions, not even guidance, in the constitution.  

Let me now come to the current situation in the country and the rest of the argument of the pro-old Parliament proponents. 

After the initial failure of fixing a date for the elections on the part of the National Election Commission, when the elections were postponed by former in the wake of Covid-19 pandemic, the NEC has now fixed 20th June, 2020 as new date for the general election. The proponents of the pro-old Parliament say that, with the new date going beyond the 2nd of June, the date that falls within the three month period, the gazette proclamation by the president to dissolve the parliament and summon the new one renders ineffective.      

Let me approach this argument through the parliamentary election Act of 1981. By postponing the elections, NEC has invoked a law (24 (3) in the parliamentary election Act of 1981 that gives the election commission powers to “appoint another date for the taking of such poll” in the wake of “any emergency or unforeseen circumstances.” Interestingly, the above Act does not put any condition to the commission with regard to the time period during which the postponed elections should be held. In other words, the commission is not restricted in choosing a new date. The term “unforeseen circumstances” warrant our special attention here. In terms of that, NEC can delay elections by weeks, months or even by years. The Act empowers the commission to delay it until such times the commission thinks the emergency or the unforeseen circumstances are over. 

If we put the so called condition of period of three months, allegedly set to the Executive by the article 70 of the constitution in this context, the powers of the President stipulated in the constitution and those of National Election Commission, as contained in the parliamentary election act of 1981 become contradictory and pit against each other, resulting in a deadlock. In fact, having being concerned of this apparent legal challenge to his opinion, Mr Sumanthiran, the main proponent of the argument, gets away casually from here saying that “while there was no prohibition on the commission to set date of their choice according to the parliamentary election Act, there was clear constitutional imposition upon the President that he can no longer fulfil due to polls being delayed beyond June 2 as a result of COVID 19.” My Question is, If there is no prohibition for the NEC to restrict itself to a certain time period, more specifically to a ‘strict condition’ of three month period, as stated by Mr Sumanthiran, to hold elections, how can there be prohibitions for the President to go beyond the stipulated period of three months? Had the authors of the constitution taken the three month period in the article 70 of the constitution as mandatory and overriding condition to be followed by the President, they would definitely, not only have set out provisions of violations of such conditions there or elsewhere and would have introduced restrictions for the NEC in terms of the period of delaying the elections in the parliamentary election Act of 1981.   

A legal system of a country is to be read as a one single unit, so that the consistency of such system is maintained for the general good of the people. This is even more significant, especially when the practical applicability of certain laws becomes challenging. Interpretations to constitutions should be done, not destabilise a country but to establish. What Mr Sumanthiran, the President’s counsel, has done is the opposite. 

Let us be clear and practical; President is expected to summon the new Parliament only following an elections. This has to be understood in terms of the theory of cause and effect; holding the elections the cause, summoning of the parliament the effect. If the independent commission of the election cannot hold the election in the due course, President cannot have Aladdin’s wonder lamp to create Members of the Parliament. Finally,let me remind you of the legal axiom Lex non cogit ad impossibilia; law does not compel a man to do which is impossible.  

*Mahinda Pathirana, Senior lecturer in German. Chairman, Sri Lanka press council

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Latest comments

  • 15
    6

    Mahinda Pathirana who is a senior lecturer in German thinks he is an expert in constitutional affairs. President Gotabaya had an option to get the opinion of the Supreme Court and why he failed to get that opinion? Instead of that he went to Mahanayake’s to get their opinion why? Even now it is not too late. Can he do it? No. We all remember 2018 political coup of Mahinda Family. We all remember 18th amendment of the constitution. Mahinda Family always go against to the constitution.

  • 9
    3

    1. “Therefore, the period of three months cannot be considered an exclusive condition to the President dissolving the parliament by a proclamation.” Don’t confuse yourself between S 62 and S70. It is not the three month in question. The question is about president’s responsibility of ensuring the parliament is reconvening within a stipulated period. If he was responsible, as soon as he sees a condition the election cannot be held, he should recall the proclamation. That is what the s70 wants by strictly insisting president to fix a date for parliament to return. That kind of date cannot be overridden by EC like an election for electorate. EC cannot manipulate election date in way it can affect president’s responsibility of ensuring the parliament meeting day. President cannot dissolve a parliament if he foresees a condition that prevents him from making sure the parliament is reconvening according to S70. He cannot play games like you are doing. But sadly that is what happened here. Here Aanduwa had engaged in spreading Corona while putting the blame on Muslims. Then King dismissed the parliament to have the election in his way. He pinched the child and quickly started to rock the cradle. SC must declare anything he did is foul and illegal on gazette the proclamation. King and gang manipulated S 70, using the Corona. Now Old King has said he doesn’t want election because Corona is spreading doubling its power. Fine; then cancel the proclamation for the election, which is the dissolution of parliament. Period! Don’t dismiss the parliament when you cannot hold election. That is what S 70 saying.
    2. “Further, it should be stated that there is no such thing as strict conditions in a constitution, Please don’t bother us here again until you have learned the worlds’ meaning in kindergarten for “may, shall, will, could, would, should…….”

  • 4
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    3. “And, at the same time, it is common sense that the three month period is not a condition put to the executive at all from another angel. If it is a condition, the authors of the constitution should have explicitly stated “ We agree the constitution draftsmen are nothing better than you, but here they clearly means parliament’s meeting back date as a condition. This 19A; this is the line Ranil and Sumanthiran put there together; believe me it is condition to dissolve the parliament.
    4. “After the initial failure of fixing a date for the elections on the part of the National Election Commission, “ Hello hoooouui! initially the date was fixed by King for May 15. EC didn’t want to change because EC said in black white term that the May 15 was fixed with Malayalee consultants as an auspicious date, so they cannot adjust it for any date before June 2, the constitutional limit. But P.K. Palachandran, an Indian Namboodiri consultant, offered that May 28 also as another auspicious date, but EC declined it as that was too soon for them to make arrangement. This auspicious problem was frustrating the condition constitution was putting through S70 for recalling the new parliament’s meeting date. EC did know the draftsmen stupidoos had not overtly provided a procedure to recall the gazette proclamation, so they asked King to consult SC who only can do that. King pulled the gun on EC and made it to fix the date on June 20, the King’s Birthdays.

  • 5
    1

    5. ” By postponing the elections, NEC has invoked a law (24 (3) “ That is a foolish assumption. Once the president set the election date the country’s election law comes into operation. Anything happens about election after that will be governed by that act (1981). Election commission functions under those provision, but doesn’t invoke that act. That act does not allow EC to fix parliament’s meeting date and that authority is exclusive to president. EC may adjust the date of election of a section of the electorates while it may not affect the quorum of the parliament on the date it was fixed by president to reconvene. In all other cases, if EC want to change the date, it has to consult president and/or SC. EC chair is no Executive to decide anything of a parliament’s function and even Executive’s ability on that is limited by S 70 by as three months.
    6. “The term “unforeseen circumstances” warrant our special attention here. In terms of that, NEC can delay elections by weeks, months or even by years. The Act empowers the commission to delay it until such times the commission thinks the emergency or the unforeseen circumstances are over. Sadly you didn’t hear Sumanthiran’s explanation on that. Emergency is emergency. It is not something last like Cretaceous or Jurassic Park time. In those circumstances, Legally, emergency is the normal period, not emergency time. If emergency is longs more than a month the parliament has to declare it second time. If EC wants to go to bathroom, he cannot declare emergency, unlike New King did earlier, sending all the ministers home and cancel the cabinet meeting. EC having bathroom emergency does not affect the three months declared in S70. EC’s emergency date or three months limitation, which ever fall earlier is the one bring the emergency to an ends. The three months prevail is absolute; no hindrance. So naturally because election commission fixed the date beyond the three months, so proclamation is now ended.

  • 4
    1

    7. “Had the authors of the constitution taken the three month period in the article 70 of the constitution as mandatory and overriding condition to be followed by the President, EC is out of the three branches run the government. President is limited to stay within three months only to balance the power between the three branches. President cannot look for loophole somewhere else to evade the three months so he can keep parliament under his jackboot. EC cannot become accomplish to achieve this. EC has to recognize three months in S70 by which it gained authority to conduct the election. Election act did not grant an unlimited time to EC to fix a date. S 70 is not Aladdin to open the magic bottle and let the Genie, 1981 Election act, an act with no limit in power. S 70 clearly says emergency declaration loses hold when the three months is time limit is reached. Here 19A supersede the election law which is older and dependent on president’s declaration for election to come into exist.
    The important development we now is, King has deployed Army to parliament, which is the prime symbol of a democratic country. This action is not to protect the parliamentarians, but to prevent parliamentarians entering parliament. King mentally sees the valid cause for parliamentarians to enter parliament so he is set ahead to block them. King is willingly standing to sideline the constitution and declare a military government. This is telling the long story of spreading the Corona willingly, shutting the parliament, declaring election, refusing to consult SC….. and the rest, short; all going are dramas

  • 9
    2

    This guy claims he is the Chairman, Sri Lanka press council.
    …or is he the Chaimrman of mouth piece council of the Rajapakse clan#
    if this is the caliber of the Chairman of Sri Lanka press council…what chance Sri Lanka has .
    any way he is a senior lecturer in German ….not senior lecturer in constitutional affairs.
    so who wrote this article for him?
    G.L.Pieries?

  • 10
    2

    Lankas fake news council chairman thinks except Rajapaksas everyone else is either wrong or as he wrote before JVP lies.

  • 0
    0

    Why is it that no one has challenged the declaration of curfew and other issues relating to the dissolution of Parliament in the Supreme Court?
    The curfew though is a must against the spread of the Covid-19 but has it been properly invoked?

  • 0
    0

    Plato, I give credit to those very few , who did not challenge in courts. Any way the judiciary, AG Dept has been shutdown for days even to take up the matter. The need of the hour is social distancing and if any can be achieved by curfew (though illegal) better not to jeopardize, but when illegal measures like Ranjan,s arrest was attempted , court intervention was promptly sought. With parliament reconvening I am not sure how much time is left between now and what Gotha has planned, for any judiciary intervention.(there is very few who are willing to stand up,and usually constitutional jargon take months). The good news is , Ranjan passed GCE English with Credit. I salute him. At least the man is willing to walk than talk. Where as we still have plenty of crooked politicians who did not even complete school , doing all the talking.

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