Supreme Court Starts hearing the petitions filed pertaining to General Election for the second day.Hearing resumed with the submission of Mr.Viran Corea appearing for center for policy alternative and Dr.Pakkiyasothi Sarawanamuttu, Director of CPA.
Mr.Corea embarked on his submissions by stating that the Petitioners have come before Supreme Court to protect the people’s right to franchise and their sovereignty. He submitted that free and fair elections must be safe and health experts have suggested that under the prevailing conditions holding an election is not safe.
He submitted that until that time a new Parliament can be elected, the functions of the Parliament must continue. He concurred with the submissions made by Mr.Sumanthiran PC and associated with those submissions. Articles 33A and 42 of the Constitution stipulate that the President and the Cabinet are constitutionally responsible to the Parliament. Parliament has full control of public finance. In terms of the constitution the functioning of the Parliament cannot be dispensed as per Article 62 of the Constitution. Referring to the 2018 dissolution case, Mr.Corea said that there is no special power vested on the President to dissolve Parliament except the power subject to the restrictions stipulated in Art.70 of the Constitution. He pointed out 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. The only exception to the aforesaid restriction is contained in Art.70 (6) of the Constitution.
Mr.Viran Corea during his submission pointed out that the framers of the constitution have taken great pains to emphasize that a new Parliament must meet within 3 months. The power under Art.70 (5) must be construed as having three mandatory duties. They are ‘to dissolve’, ‘to set a date for election’ and ‘to set a date for summoning the new Parliament’. Hence, the Dissolution proclamation, ever since it became clear that the new Parliament cannot be summoned on the stipulated date, has become invalid. So the impugned proclamation is not in line with the constitution and thus it is void. Mr.Corea warned that, there is imminent danger unless the impugned proclamation is held void. Otherwise a dangerous precedent will be set where a vital organ of Government, for the first time, will not function for over the stipulated maximum of three months’ period. He urged the Court to grant leave to proceed in order to prevent the dismantling of Constitution, and concluded his submissions.
Following the submission of Mr.Viran Corea who appeared for CPA and its Director, Mr.Suren Fernando appearing for two set of Petitioners including Ranjith Madduma Bandara, General Secretary of a political party, commenced his submissions. Mr. Fernando submitted that it has been upheld in several instances by the Supreme Court that where a citizen is prevented from coming to courts due to factors not within his control, time bar limits shall not apply. He said that, the election commission has two responsibilities. One is to have a timely election, and the other is to have a free and fair, and secret election. Mr. Fernando fully associated the submissions made by Mr.MA.Sumanthiran and Mr.Viran Corea and reiterated the principle that in Sri Lanka, sovereignty lies with the people. The Constitution must be read as a whole. Referring to the 2018 Dissolution case Mr. Fernando said that all the provisions of the constitution must be taken together and interpreted in a harmonious manner. In any functioning democracy, all three organs of Government must exist. He emphasized the importance of separation of powers. He referred to the United Kingdom Supreme Court’s Miller judgment pertaining to the prorogation and pointed out the importance of Parliamentary accountability. Referring to the Miller judgment, he mentioned that without reasonable justification the restriction of functioning of Parliament is unlawful.
‘Constitution makes the President responsible to the Parliament and he must attend Parliament once in 3 months. If Parliament stand dissolved for over 3 months how can the President attend the Parliament?’ Mr. Fernando asked
He submitted that the situation confronted now is far more serious than the situation confronted during the 2018 dissolution. Art.62 of the Constitution is the main provision that the Supreme Court should take into consideration. The general rule is that the term of Parliament is 5 years. Art.70 stipulates the exception to this general rule. For the exception in Art.70 to be invoked, it is mandatory that the new Parliament must be able to sit within 3 months from the dissolution. He reiterated that the duty of Parliament to attend Parliament every three months would be violated if a Parliament stands dissolved for over three months. The proclamation must enable the Parliament to meet within 3 months on the date specified in the said proclamation. The election was not held on the time stipulated in the proclamation, and the new Parliament did not meet on the stipulated date, hence the proclamation is unworkable, and is frustrated. Hence, the impugned proclamation cannot stand valid in law. He said that the distinction of void and voidable doesn’t exist in law anymore. The law has developed and what is erroneous on the face of record is invalid in law – ab initio null and void. The citizens have the Right to have a functioning Parliament. If not for the early dissolution invoked by the President, this Parliament would continue until September.
Mr.Suren Fernando went on to say that, dissolution in our Constitution is not permanent. Neither is it termination. It is not ‘permanent killing of Parliament’ until a new Parliament is elected. If it is construed otherwise, it will render other provisions in the Constitution meaningless. Dissolution of Parliament is not like dissolution of marriage or dissolution of a partnership. Art.70 (7) of the Constitution enables the President to summon a dissolved Parliament. You can’t summon a dead Parliament. Hence, dissolution doesn’t mean the Parliament is dead. Dissolution of Parliament is not a permanent ending. If that is so Art.70 (7) will be unworkable. Art.33 (1) (a) imposes a duty on the President to respect and uphold the Constitution. This is a situation where the constitution is not respected and upheld. Once organ of the Government is not functioning the President had a duty to rescind his proclamation.”When you have the power you must not abuse it, but also it is necessary situations you must use it. For free and fair elections candidates must be allowed the freedom to campaign without unreasonable restrictions. Would it be possible to do this now? Would it be a sane thing to allow it? In these circumstances an election should not be held until it can be ensured that it can be held free and fair’ said Mr. Fernando in his submission.
He further submitted that the Disaster Management Act is perhaps not being used is because it involves Parliamentary mechanism. Parliament has full control of public finances. This is control over sources, allocation, and oversight of public finances. According to the Constitution no withdrawal from the consolidated fund can be warranted by the Executive without the approval of the Parliament. The President has no control over sources and oversight of public finances. In the circumstances, the President’s powers are limited to the allocation of public finances to public service. Capital expenses are not for public services and President cannot authorize such payments. The President cannot authorize debt repayment as he has no power to do so. Debt ceiling is very important and is set out by Parliament. Any borrowing happened after 30th April is illegal as Parliament has not sanctioned them. The concerns pertaining to public finances emphasize the importance of a functioning Parliament. Otherwise we will be going into a dangerous situation where we will cease to be a democracy.
Mr.Suren Fernando concluded his submissions. The court was adjourned until 12.30pm. The hearing resumed around 12.30Pm. Mr. Geoffrey Alagaratnam PC appearing for two citizens of Sri Lanka commenced his submissions and associated with the submissions of Mr. MA.Sumanthiran PC, Mr. Viran Corea, and Mr. Suren Fernando .
He referred to the famous saying that the king is dead, long lives the kingdom, and emphasized the importance of the continuance of Parliament. The power of dissolution is not an open ended power. He submitted that the constitution reflects the social contract between the sovereign people and the rulers who hold and exercise that sovereign power in trust of the people. We don’t have an election by hook or crook. It must be free and fair. The Executive has stated that under no circumstances He would reconvene the Parliament. ‘Is it responsible by an Executive to say so? Isn’t the essence of democracy dissent, disagreement, and debate? Or is it shinning away from dissent, disagreement and debate’. Asked Mr. Alagaratnam. There is no democracy without dissent. There is no need for us to go beyond the constitution. Constitution caters for all the situations. Mr. Geoffrey Alagaratnam PC has concluded his submissions.
Following the submission of Mr. Geoffrey Alagaratnam Mr.Ikram Mohammed PC appearing for SLMC leader Rauff Hakeem commenced his submissions. Mr. Ikram Mohammed PC submitted that the dissolution proclamation has ceased to be valid; it is inoperative; and cannot be carried forward. The date of election stipulated in the proclamation cannot be changed. That date has come and gone. Once a dissolution proclamation is made by the President, the date of election is fixed, and the date of summoning of new Parliament is fixed and it is imperative it must be within 3 months from the dissolution. Upon dissolution the Parliament continues and only the membership of members of Parliament ceases. The object and duty of the election commission is to conduct free and fair elections. To ensure the same is also the duty of the President.
‘If elections were held, queues may extend to more than a kilometer. Is it practical to have an election now, can we all stand in such queues? Can social distancing be maintained at an election? Asked Mr.Ikram Mohamed. He said that, the election commission has written a “beautiful letter” expressing that according to the constitution that Parliament must meet at least by the 1st June, and to do so election must be held on 27/28 May. Due to Covid19 it is not realistically possible. Even today we are not free, therefore a free and fair election cannot be held. Even the election commission has foreseen that there might be a Constitutional problem as elections cannot be held before the 2nd June. The President could have obtained an opinion from Supreme Court, but he has not done that, and that is why these actions had to be filed.
He went on to say that, the date of the election contained in the dissolution proclamation cannot be changed and the new Parliament must be summoned within three months from the dissolution. All applicable principles of law have been decided by the Supreme Court in the 2018 dissolution case.
The court was adjourned for a break.
The proceedings resumed and Mr.Ikram Mohammed PC continued to make his submissions. Mr.Ikram Mohammed PC submitted that, Supreme Court is the final guardian of the Fundamental Rights and there is no other place to go. It is a solemn and sacred duty of the Supreme Court. That President is also subject to rule of law; he is a creature of the constitution, and he is not above the law.
Following the conclusion of Mr.Ikram Mohammed’s submissions, proceedings were adjourned, and to be resumed tomorrow.
This summary is prepared based on the series of Tweets by N.K.Ashokbharan.