In an unprecedented step, the hearing of the FR petitions pertaining to the general elections before the Supreme Court held in the ceremonial courtroom. This is to ensure social distancing is practiced in a hearing where over twenty counsels are appearing. It was mostly packed. Half of the seats were intentionally kept empty in order to maintain social distancing.
8 FR petitions pertaining to the general elections taken up before a five-judge bench of the SC.ASG Mrs.Indika de Silva appearing for the AG and some of the Respondents. Mr.Romesh de Silva PC appearing for the Secretary to the President raised several preliminary objections, including the time bar.
Mr.Sumanthiran PC appearing for the Petitioner Charitha Gunaratne commenced his submissions. Mr.MA.Sumanthiran PC began his submissions by explaining what “Parliament” is, and what it means. He submitted that the British Parliamentary traditions are very much part of our law. He further submits that legislature is a “continuing institution”, and cited Blackstone’s Law of England and Indian Constitution in support of his contention.
He further submitted that the Parliament never goes out of existence.you can never annihilate the Parliament.during dissolution, it goes on sleep mode. Parliament is dissolved only for the purpose of electing new members. Free and fair elections are as important as periodical elections. If there is no Parliament, that country is not a democracy.
Sumanthiran reiterated the importance of SC judgment in the 2018 Dissolution case and stated that the President does not have untrammeled plenary power. A 7 bench SC has held that President’s powers are subject to and curtailed by the constitution. He submitted that President’s power to dissolve the parliament has conditions attached to it. President’s power to dissolve the Parliament for early elections comes with restrictions as stipulated in Article 70(5). If the proclamation to dissolve didn’t specify the date of elections and the date of summoning of the new Parliament, as required by Art. 70(5), that proclamation would be void ab initio. He said that 25th of May has come and gone, 14th of May has come and gone, there is no new Parliament. Hence, the proclamation to dissolve is void now.
He further went on that the difference between ab initio void and voidable is irrelevant. The proclamation is now erroneous on the face of the record, thus it is void. ‘You cannot dissolve Parliament without holding elections to elect new members to the Parliament. President’s power stipulated in Art.70 must be exercised “in trust for the people. There is no absolute discretion. The election commission not accepting nominations on one public holiday and accepting nominations on three other public holidays is an inconsistent act affecting free and fair elections’ said Sumanthiran PC, in his submission today.
He pointed out that that elections commission has carried out several acts stipulated in the law on a public holiday, and questioned the validity of the said acts. “Elections commission has done its own thing, fixing the elections on 20th June, being blind of the constitution. Isn’t it a joke played on the sovereign people by the election commission and the executive President?” asked Sumanthiran.
SC hearing resumed after the lunch break. Mr. MASumanthiran PC continued his submissions. “franchise is important, but it is the franchise of citizens, and therefore the citizens are far more important than the franchise. You can enjoy your franchise so long as you are alive. To call an early election is a political decision, but at what cost?” Asked Sumanthiran.
He submitted an article from The Economist magazine. Mr. Romesh de Silva objected to the reliability of a magazine suggesting that a few days ago a magazine referred to Sri Lanka as Eelam. Mr.Sumanthiran listed the challenges in conducting elections under the present pandemic situation. He further stated elections must be held but sufficient laws must be enacted to conduct elections under the present pandemic conditions. He reiterated that elections must be held, but to facilitate the holding of elections new laws must be enacted. Changes must be made by the bodies which are empowered to make those changes and suggested that it is the Parliament’s power to legislate which Supreme Court has ‘jealously guarded.
President Counsel Sumanthiran further stated, “What has to be done by the legislature must be done by the legislature not the executive like the curfew being declared by the Presidential media division’s press release. President had several keys to get out of this deadlock, but he didn’t use it and the final key is with the Supreme Court”. He reiterated that new laws are required to hold elections under the current conditions. President holds his power in trust of the people for the benefit of the people, not his party or his politics, and he has to exercise that power in the best interests of the people.”Changed situations require changes methods but those methods must be properly promulgated” submitted Sumanthiran during his submission.
He invited the court to guard the integrity of the Parliament which is now locked and kept under guard of the army. He reminded of one day in history where the court of prevented from functioning by the courtroom being padlocked. He said in his submission that the court should not allow such again.
Mr.Sumanthiran submitted it won’t be necessary for him to plead for interim relief as elections will not be held on 20 June as various obligations under the law cannot be fulfilled. He pointed out that in some areas people are going for a walk, in some areas people are being arrested, this is because the curfew is not done according to Rule of Law. He said that “This is what happens in an anarchy”
Mr. MA. Sumanthiran PC concluded his submissions today. Other Petitioners are to make their submissions and the Court was adjourned until tomorrow.
This summary is prepared based on the series of Tweets by N.K.Ashokbharan.