An Editorial note: Our writer N. Lohathayalan this evening submitted a short summary of M.A. Sumanthiran’s submission to the Supreme Court of the arguments of all those who spoke for the Petitioners in the just concluded elections cases. These cases asked essentially for the Gazette of 2 March 2020 to be nullified. 

One valid opinion among our editorial staff held that –  the court judgement having been delivered at 3:00 pm on 2 June 2020 not to permit the cases to go on, refusing “leave to proceed” –  the article is out of date and not to be published. The Supreme Court, in this school of thought, has rejected these arguments.

The Editorial Board, however, came to conclude that the article is eminently worthy of publication. Why so?

M.A. Sumanthiran PC

In an election the people vote. It is said the electoral verdict is sacrosanct. Indeed. It is also said vox populi, vox dei. That is, the voice of the people is the voice of God. But is it? The recent Sri Lankan election verdict is far from the voice of God. Yet, we do not question it, because it is a commonly agreed systemic democratic principle, right or wrong, that the people’s voice must be respected.

Likewise, our Supreme Court Justices are far from gods. Like the people of Sri Lanka, they too are susceptible to grave errors as in the Helping Hambantota Frauds where a Chief Justice boasted of how he helped certain politicians.

This is not to say that our justices are bad. Rather, it is to say that their verdict is not necessarily from God.

In a democracy, we have a systemic agreement to live by court decisions. It does not mean that court decisions are right, or free of political and career considerations. We simply agree to live by them.

In a democracy, knowledge is more important than systemic and blind obedience to popular verdicts, whether of the electorate or courts. Sumanthiran’s arguments in court are good. Just because the Supreme Court says otherwise, we do not need to think his arguments wrong. We are therefore publishing his summary in the belief that knowledge is golden, knowledge is power, and knowledge matters. So read and be aware that even the Supreme Court’s verdict has its detractors.

Common Summary in Supreme Court on 1 June 2020 Regarding all Elections Cases on Behalf of  All Respondents by M.A. Sumanthiran

By N. Lohathayalan –

The word Parliament came to be used in the thirteenth century AD. In the  year 1215 AD, what was known as the Great Council, consisting of Lords, in the Magna Carta was established as the Parliamentum. In warring with other countries, funds were raised through taxation with parliamentary approval.

Since the Sovereign was the head of Parliament, whenever a Sovereign died, Parliament was considered dissolved. In the seventeenth century there was a controversy over who the successor to the diseased king ought to be, and attendant upon it was a delay in deciding. To address this problem of not having a Sovereign, a law was enacted.  Accordingly, when a King or Queen died, parliament must be convened. Should the demise of the Sovereign occur when Parliament is in a dissolved state, the dismissed Parliament ought to reconvene  until the next King or Queen dismisses parliament or for a period of six months. A Parliament does not die. Even if dissolved, this situation gave rise to the new theoretical position that a dismissed Parliament may always be reconvened.

It is the British Parliament that is the source of all Parliaments. The traditions of the British Parliament are established as law in Sri Lanka. In Section 7 of Parliamentary Law (Powers and Privileges), it is said, the trends and ways in the British Parliament are the laws applicable to the Sri Lankan Parliament, and to know these trends and ways one must study the daily proceedings of Britannia’s Parliament whose footprints we follow.

British traditions have been internalized to our Parliament. Therefore, dismissing Parliament can never be equated to sending it into oblivion. The Parliament is an institution that lives with continuity. The only rationale for dismissing a Parliament is to select new members for it.  

Therefore, until new members are selected for a Parliament, the old members of Parliament may be summoned to meet if the need arises, It is this principle that is enshrined in Sections 70(7) and 155 in our Constitution. 

In Article 70(1) the President has been empowered to dismiss Parliament ahead of its completing its 5-year term. However, even that power is circumscribed by stating that if such dismissal is ahead of 4.5 years into the life of Parliament, it requires a parliamentary resolution approved by a two-thirds majority. It is because President Maithripala Sirisena violated this condition in dismissing Parliament in 2018 that a bench of 7 judges of the Supreme Court ruled against that dismissal in Rajavarothayam Sampanthan Versus Attorney General. 

It was already in our statutes that in any declaration dismissing Parliament, the date of dismissal, the date of poll and the date of convening the new Parliament ought to be specified (Vide Section 70(5) of our Constitution). Even if the date of convening the new Parliament is subsequently changed, that new date has to be within three months of the original dissolution. In the event of Parliament not functioning, it shall not be in excess of three months says another fundamental principle in our constitution. Even if that three-month hiatus is to be prolonged by an unexpected obstacle, Article 70(7) notes that the President must recall Parliament.

It was in this backdrop that the President issued his proclamation dissolving parliament as soon as the Eighth Parliament finished 4.5 years of its existence on 1 March 2020. Even prior to that we all knew that the COVID-19 Pandemic was raging world-wide. It was in relation to this that the Leader of the Opposition raised questions in Parliament on 24 January and 5 February. Already the suspicion was well-alive that elections would be impossible in the months of April and May. 

A day prior to the submission of nomination papers on 12 March, that is on 11 March, there occurred two incidents. The first Sri Lankan afflicted by COVID-19 was discovered. And second, the World Health organization announced that COVID-19 is an infectious disease  with reach across the globe. Following that, schools and workplaces were shut. 16 March was declared coming under special regulations, and nominations were not accepted on that day. However, nominations were accepted on 17, 18 and 19 May, and it came to be known only later that those three days had been declared general public holidays.  No sooner than the days appointed for nomination were over, the poll date was postponed by the Election Commission without any deadline for announcing a new date. From the next day, that is from 20 March, it was announced that  a countrywide-curfew would be put in place. After the nomination dates, it is now two months for which this “practical exercise in curfews” has been in force. 

On 20 April 2020, the Election Commission through Gazette notification announced that the general election was being postponed to 20 June 2020. This violated the 3-month gap requirement. In the meantime, the proclamation of 2 March 2020 continues to state that the election poll-date is 25 April and that the date for convening the new Parliament is 14 May, 2020. 

On the first day that hearings commenced in the ongoing cases, that is on 18 May, the above-mentioned two dates had passed. In this situation, only the 2 March dissolution of Parliament remains implemented. The other two dates are not implementable. Indeed, the other two dates defy implementation.

A Parliament is dissolved only to select new members. There are no other reasons for dissolving Parliament. While that is so, it cannot be that the 2 March date of dissolution in the gazette is the only date that has been or can be implemented. Dissolution in meaning cannot be separated from 1) Choosing new representatives in Parliament and 2) Convening the new Parliament. Parliament functioning without time limit is a violation of the Sovereignty of the people.

Section 70(5) of our constitution requires three dates to be noted in the Gazette dissolving Parliament: 1) The date of dissolution; 2) The date of the new Parliament convening; and 3) the date of polling. It is only if all three dates are included in the Gazette that the dissolution may be considered lawful.

When the Gazette dated 2 March was published, all three dates given were feasible and practicable. However, when the poll date was changed to 20 June, it was confirmed that the new Parliament could not be convened on 14 May; it was moreover confirmed that the new Parliament could be convened within 3 months of the proclamation of 2 March, that is by 2 June. 

It is in these circumstances that the Petitioners sought the intervention of the Supreme Court. Their plaint was that their fundamental rights were in imminent danger of violation. When Petitioners claim the protection of court about the imminent infringement of their rights, stopping that infringement even before it occurs is the duty of court. Tomorrow, 2 June, 2020 midnight, this infringement will occur.  Even before that the Supreme Court must issue an appropriate order. 

As for the three-month gap between the proclamation and the convening of the new Parliament, there arises the question whether that limit must be observed willy-nilly or it can be expanded as circumstances warrant. 

In the year 2018, in the case concerning the dissolution of Parliament, it was firmly established that the gap is firm and cannot be expanded in Sampanthan Versus Attorney General through the ruling of a seven-judge Supreme Court Bench.

We need to uphold the constitutional structures for basic human rights violation cases, democratic governance structures and the rule of law. These involve cases against the government. One agent of the government usually will not fault another. However, when that is done as when those in Parliament complain against the Executive, it more than in other circumstances confirms that our rights are being trammeled. Therefore, I ask humbly that you find with the Petitioners and permit the continuation of the case.