By Hafeel Farisz
Negating every argument to the contrary put forward for the dissolution of Parliament, the Supreme Court heard yesterday that the President could not act like he was “Alice in Wonderland” and had to abide by the provisions of the Constitution when exercising the powers vested in the Executive.
Ten Petitioners submitted to court that the powers of the President under Article 33 (2) (c) to dissolve parliament was not an unfettered power and was circumscribed by the express provisions in Article 70 (1) of the constitution. “ Article 33 is an empowering provision but clearly subject to procedure. In fact 33 A is clear in the Presidents accountability to parliament” counsel said. They said the proclamation of the President to dissolve parliament was ab initio void (invalid from the outset) illegal and unconstitutional.
Explaining the “absurdity” of the argument of Aticle 33 (2) (c ) being stand alone “If the power to summon, prorogue or dissolve as provided for in 33 (2) (c ) was to stand alone, that means the President could prorogue parliament indefinitely isn’t it? Could he do that? I ask you could he do that? No he can’t because his powers to prorogue are confined by the provisions of Article 70 (3)” M.A Sumanthiran PC submitted.
Focusing on the proclamation of the President dated 9th November 2018 through which the President purportedly dissolved Parliament; Counsel said the President had cited Article 70 (5) of the constitution when in actual fact the power is derived under Article 70 (1).
“ The only provision under which the President can issue a proclamation to dissolve parliament is found in Article 70 (1). That is it. No other provision in the Constitution provides for dissolution by proclamation and 70 (1) is clear. He has no mandate to dissolve parliament before 4 ½ years or without resolution by 2/3rds” Hejaaz Hizbulla Counsel for Commissioner of Elections Prof. Rathnajeevan Hoole told court.
First as Respondent and then as the Petitioner, a member of three member Elections Commission told the Supreme Court that the actions of the President were “ illegal and unconstitutional”.
Commencing submissions in the Fundamental Rights Applications filed against the dissolution of Parliament, K. Kanagiswaran PC appearing for the leader of the opposition R. Sambanthan with M.A Sumanthiran PC, Niran Anketell, Jerusha Crosette Thambiah and Juanita Arulanantham explained to court the nature of the constitution as it stands post 19th Amendment.
“ Article 62 (2) which states ‘Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament’ is the norm. Dissolution is the exception and that is provided for in 70 (1)” he said.
Thereafter pointing out that the proviso in Article 70 (1) is mandatory. “ I don’t think I need to explain myself when the constitution clearly says “shall not” M’luds. It says you cant. There is no way out” he said.
Article 70 (1) of the Constitution reads “Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour”
“ The Elephant missing in the room ( proclamation) is reference to Article 70 (1) in the proclamation. What it has referred to is 70 (5) which has got nothing to do with the power of dissolution by proclamation. It’s that simple” he said.
Responding to Mr. Kanagiswarans submissions Hejaaz Hisbulla appearing on behalf of a Commissioner of Elections cited the dicta in the case of Karunathilake v Dayananda Dissanayake justifying his stance that the actions of the President were illegal and unconstitutional.
“ I cant act with a clear conscience when the very basis of the constitution has been violated by the actions of the President. In fact Your Lordships Court has held that the Elections Commissioner must not do so” he said before going on to read passages of the judgment of the case.
Earlier when the Fundamental Rights application filed by R.Sambanthan was taken up at 12.20 Deputy Solicitor General Sanjay Rajarathnam informed court that the Attorney General had not been served with notices and said he was yet to receive instructions from the Elections Commission who were cited as Respondents.
The Petitioners informed court that their Petitions were filed at 8.30 AM last morning. The fact that the Petitions were filed in the morning and made its way to the Court house in the afternoon was not lost by many, who usually have to wait weeks before a Fundamental Rights petition is listed for hearing.
However, Chief Justice Nalin Perera informed the Mr. Rajarathnam to obtain instructions and be present at 2. PM after which court was adjourned. Thereafter, a team led by the Attorney General Jayantha Jayasuriya PC himself together with Solicitor General Dappula De Livera, Nerin Pulle DSG, Dr. Avanthi Perera SSC and Indika Demuni DSG walked into court a few minutes before 2 PM.
As soon as court resumed Mr. Jayasuriya PC informed the three judge bench, headed by Chief Justice Nalin Perera and Justice Prasanna Jayawardena and Priyantha Jayawardena, the scheduled bench for today in court room 502 that they had to move for time to obtain instructions. The Attorney General said that he was made a party in terms of Article 35 the Constitution which provides for the AG to be made a party ” of anything done or omitted to be done by the President, in his official capacity”
However, the Bench informed the Attorney General that they were inclined to hear the Petitioners following which the Attorney General was permitted to make submissions today. Several Counsel including those representing Prof. G. L Peiris, and Channa Jayasumana, both staunch supporters of former President Mahinda Rajapaksa sought to intervene. The court informed them to follow the procedure in order to intervene. They are scheduled to make submissions today having filed intervening papers.
Throughout the submissions made thereafter, including that of Thilak Marapana PC representing the UNP, Counsel maintained that the President had no power to dissolve parliament without following the procedure laid down in the constitution.
“ We ask for an interim order against the proclamation. Your Lordships would want to know what flows from it and what flows from it is that the status quo ante (the way things were before) remains. If they want they can go to parliament and resolve to dissolve parliament. But nothing can flow from illegality. The proclamation is illegal and nothing can flow from it” Counsel said.
Geoffrey Alagrathnam PC, representing Mano Ganesan quoting from Lord Atkin in the case of Liveridge v Anderson a landmark case in Britain regarding the separation of powers where Lord Atkin Quoted a dialogue between Humpty Dumpty and Alice, said the President cannot be allowed to pick and chose which parts of the Constitution to follow and which to negate.
Harnessing the point further, Hejaaz Hizbullah, representing Rathnajeewan Hoole as Petitioner said if 33 (2) (c ) was to be considered a stand alone provision, that would in effect mean the President having the power to dissolve or prorogue parliament even when an impeachment motion has been submitted to the speaker.
Suren Fernando representing the All Ceylon Muslim Congress went further to highlight the “absurdity of this construction”.
Jayampathy Wickremarathne PC who made submissions submitted to Court the principles of interpretation of the Constitution quoting widely from the leaded text on interpretation of statutes “ Bindrar on Interpretation “said that there was no mode in which the actions of the President could be legitimized.
Presidents Counsel Ikram Mohomed representing the Muslim Congress also made submissions in support of the arguments put forward by the Counsel. “There is no way this can be cured except by Your Lordships Court. And that is by holding that this move is illegal and unconstitutional” he told court.
Counsel J.C. Weliamuna represented the Janatha Vimukthi Peramuna, whilst Viran Corea represented the Centre for Policy Alternatives and Thishya Weragoda for civil society . All Counsel sided with the submissions of the other.
Having heard submissions till 5 PM the court adjourned. The Attorney General made an application for the hearings to be taken up on Wednesday which was denied. The hearing will commence at 10 AM today in Court 502.