by Prof. Savitri Goonesekere
During the last few weeks, the media has paid a great deal of attention to fundamental rights cases filed in our Supreme Court. The electronic media, typically expressed half-truths or incorrect information on what these cases were about. Sadly, but perhaps not unexpectedly, opposition parties who should have been concerned with the matter, failed to contradict the toxic messages on the TV, regarding this litigation in the Supreme Court.
Most people thought that the petitioners were just being nasty, trying to prevent a General Election, and challenging the President’s right to dissolve Parliament. Opinions expressed, in analyzing the legal provisions were either dismissed as irrelevant legal jargon, or another contribution to partisan politics.
When the Supreme Court dismissed all the petitions, on June 2, 2020, after long hearings, without giving reasons, there was closure on the debate. Their Lordships had expressed a unanimous opinion that all the petitions had no merit, and that was the end of the matter.
Some of us, analyzing the issue of postponed elections and incapacity to summon a new Parliament, due to Covid 19, requested the President in public appeals to act under Article 70 (7) of the Constitution.
This article empowered him to reconvene the dissolved Parliament, issuing a new proclamation of dissolution, with dates for a General Election and summoning of the new Parliament, when the public health crisis was over. He was empowered to take such action by the Constitution, in response to “an emergency.” However, he refused to exercise this power.
Government spokesmen told us all that the President had decided that there was no emergency or an issue of public security that demanded exercise of those powers. And yet on the very night of the Supreme Court judgment the President issued an extraordinary Gazette notification of June 2, 2020, setting up a Presidential Task Force on the rationale of ensuring “the security of the country”, i.e. to build “a secure country, and a disciplined virtuous and lawful society,” also implying an ongoing breakdown of law and order.
Understanding these events, the Constitution, our fundamental rights as citizens, and the exercise of Presidential power, are matters that should concern us. These happenings can at some point impact on all our lives. Especially when, for so many years we all agreed that this country’s governance had been destroyed because of the Executive Presidency. The recent litigation on fundamental rights, and the Extraordinary Gazette notification that followed, are matters that we should reflect on, even as we go to the polls to cast our votes at the next General election.
Fundamental Rights Litigation May- June 2020 on Postponement of General Elections 2020 and Summoning of New Parliament
This litigation was NOT based on the illegality of the President’s Proclamation of March 2, 2020 dissolving Parliament. This was VALID in law and NOT challenged by those who brought these cases to the Supreme Court. The fundamental rights petition was filed on three major grounds:
a) That Article 70 (5) of the Constitution made it very clear that after the General Election was held on a date set by the original Proclamation of Dissolution, the new Parliament had to meet “on a date NOT LATER THAN THREE MONTHS AFTER THE DATE OF” the original proclamation. A variation by a subsequent Proclamation of the President had to conform to that date. The only exception was if the President exercised his powers under subsection 7 of that same Article 70, on the basis that there was an emergency that made “an earlier meeting of (the dissolved) Parliament necessary.” The President refused to exercise this power. The three-month limit for summoning of Parliament in the original Proclamation was exceeded on June 2, 2020. The petitioners therefore argued that the legal period for summoning the new Parliament had lapsed, and the original Proclamation had therefore become void or lost its legality.
b) The second key premise was that the Elections Act provisions (Section 24(1) (c) and Section 10), linked the Elections Commission’s notice on the date of the General Election to the Presidential Proclamation. Therefore, when the three-month period for summoning the new Parliament lapsed, the Commission could not vary the date of the General Elections by its own actions. This also required interpreting the provisions of the Elections Act on postponing the election in an electoral district due to an emergency or unforeseen circumstance, and whether this referred to the General Election in the whole island as defined in Article 170 of the Constitution.
c) The third issue was the impact of postponement of elections and absence of a date set for summoning the new Parliament, on financial oversight. This required an interpretation of Article 150 (3) on the President’s power to make withdrawals from the Consolidated Fund after a dissolution of Parliament.
There were other arguments, but these were the key issues that required a determination by court. It was these issues that created the context for an important Constitutional case that would also define the scope of Presidential powers in relation to Parliament. As important and defining in relation to governance of the nation, as the Dissolution of Parliament case of 2018.
Except for his Lordship the Chief Justice, many if not all the judges in the five judge Bench also participated in the unanimous Full Bench decision of the HNJ Perera CJ Court in 2018. Those of us who study the jurisprudence of our apex court and teach it to law students, looked forward to a Supreme Court decision worthy of the best of the jurisprudence that has emerged from our highest court. After ten days of argument before the Supreme Court, we all awaited a decision on what we considered an important Constitutional law case, on the powers of the two key organs of governance – Parliament and the Executive President. To our amazement, the Court unanimously dismissed all the petitions without giving any reasons.
It was disappointing to read and listen to media accounts of the advocacy in our highest court, in these cases. These reports may have been inaccurate. But summaries provided suggested that while the Petitioners’ lawyers were analyzing the law, on the above key issues of Constitutional interpretation, the respondents’ lawyers focused on the political dimensions and did not respond with counter legal arguments. They constantly questioned the good faith of the petitioners in coming to court, attributing political bias.
The President of the Bar Association sometime ago issued a statement suggesting that decisions of the courts should not be commented on by lawyers. However, critical review of court decisions has been an important part of both judicial decision making and legal education in Sri Lankan and other legal systems, for decades.
The jurisprudence and advocacy associated with great justices of the appellate courts, and brilliant practitioners of the legal profession, focused on review and critique of case law. My late husband RKW Goonesekere delivered the Desmond Fernando PC Memorial Oration at the invitation of the Bar Association. His theme was a critique of the Supreme Court decision that held that there were no limits to the Presidential term of office, despite specific provisions in the Constitution of 1978.
That decision was overturned by the 19th Amendment passed by a 2/3 majority in Parliament. I recall as a young lecturer commenting on a judgment of his Lordship late HW Tambiah QC on the Tesawalamai. His Lordship and I were at a seminar on the personal laws. His Lordship came up to me later, smiled and said “your comments were very interesting. But you know unfortunately judges don’t have a right of reply!”
It is in this spirit that some of us still believe that the serious study of case law is important for practitioners and judges, law teachers and students, and especially all those interested in issues of law and justice. It is respectfully submitted that the hearing of these important fundamental rights petitions over 10 days, and the Court’s refusal of leave to proceed without reasons, has left the interpretation of Article 70 of the Constitution, and the relevant provisions of the Elections Act shrouded in mystery.
In discussing this case in classrooms and other fora we will not know what their Lordships thought was the meaning of the three-month limitation on the Dissolution Proclamation so clearly set out in the Constitution. Nor will we know their views on the important matter of the link between the Election Commission’s Gazette notification on the date of a General Election, and a Presidential Proclamation dissolving Parliament.
There have also been some unfortunate outcomes. The date of the General Election will be decided by the Elections Commission on some future date they consider acceptable. We do not have a Parliament and a President accountable to Parliament. The life of the new Parliament will begin on some uncertain date in the future. There is no provision in the Constitution for the President to summon a new Parliament by a Proclamation that does not conform to a Proclamation of Dissolution as specified in Article 70. The court has not indicated to us how such a new Parliament can or will be summoned.
Sadly, and most significantly there is now a perception among the Government and the People that the Constitution and laws are really irrelevant in governance. The manner in which the petitioners were vilified by many senior President’s Counsel for the respondents, and their motives questioned, has set new norms and standards that we also witnessed in the Court of Appeal in the well-known Gotabaya Rajapaksa Citizenship case.
One can only hope that their Lordships of the Supreme Court will contribute to changing this negative trend, reiterating once again the views of his Lordship Chief Justice HNJ Perera and the Full Bench in the Dissolution of Parliament Case 2018. His Lordship Chief Justice Perera delivering the judgment of the Full court said that the right to litigate violations of fundamental rights is an “inalienable right” of our people and the “grundnorm “ (basic norm) and “gives life and meaning to the “Sovereignty of the People” recognized by the Constitution.
The Gazette Extraordinary of June 2, 2020
The Presidential Proclamation that immediately followed the Supreme Court decision set up a Task Force of exclusively military personnel with a wide mandate “to build a secure country” and “a disciplined and lawful society”.
The Task Force is headed by the Defence Secretary. Members of the Task Force are the Commanders of the three armed forces, the Acting IGP, and several other senior military officers holding office in these forces. Directors of State Intelligence and the Directors of Intelligence of the Navy and Air Force are also members. A few retired army military officers have also been appointed.
This Presidential initiative is said to have been taken in the exercise of powers given by Article 33 of the Constitution. Not a single article or sub article of this provision in the Constitution refers to such a power or powers. Even a broad power stated in Article 33 (2) (h) refers to the President acting in conformity with international law. The issue of public security is dealt with specifically in Chapter 18 of the Constitution. When the President exercises powers under that Chapter and the Public Security Ordinance, he must also communicate with Parliament. But now we have no Parliament, and there is no indication when the new Parliament will be summoned.
The President said there is no national emergency or reasons of public security to exercise powers under Article 70 (7) of the Constitution. It was argued for the respondents that there is no emergency due to Covid 19 or a public security rationale. Yet the Elections Act expects the Elections Commission to postpone elections in an electoral district in a situation of “emergency or unforeseen circumstances.” And the President appoints, on the very day the Supreme Court order was delivered, military men with a mandate on “public security” outside the provisions of the Constitution. This is almost a public statement that the Constitution and laws are token symbols and procedures.
The mandate and powers of the Task Force are very wide.They are tasked with ‘curbing the illegal activities of social groups who are violating the law, “which is harmful to free and peaceful existence of society.” Eliminating the “drug menace” is within the mandate of the Task Force. Given the current inclination of administrators to disregard legal provisions, and a failure to understand their scope and application, we do not know what will be recognized as “violating the law”. We also do not know what the phrase “social group” will be interpreted to mean. Will this include trade unions, all professional and civil society organizations, faith groups?
The Task Force has wide powers to investigate, obtain information and issue directives. A reference to “respecting the rule of law and justice” and equal protection of the law” appears in a disconnected manner in the text, not inspiring any confidence that these phrases will be interpreted with reference to the Constitution or specific and important legal norms and standards.
All public servants, and personnel in corporations and public institutions (a term that could include state universities) are subject to the authority of the Task Force and must co-operate with it, provide information and follow directives. Failure to do so, or a dereliction of duty will be reported to the President. The President has already announced that officers in State Banks who do not follow government instructions will be dismissed.
A culture of political decision making and abuse of power especially in the last 15 years has crippled many state institutions including universities. Persons holding responsible public office are often silent spectators in decision making, fearing to speak truth to power. A tongue lashing by the President of senior officials in the banking sector may please those who want the President to exercise dictatorial powers in governance. Will these institutions too be crippled in the same way, at a time when the country desperately needs the economy to be managed with professionalism, personal integrity and commitment?
The status of the independent Commissions like the Elections Commission, Human Rights Commission, the Commission on Disappearances, the Public Services and Police Commissions, and the RTI Commission, in relation to the mandate of the Task Force has not been clarified. Can they too receive directives that must be complied with?
This Extraordinary Gazette notice is truly extraordinary for giving authority to the military as a significant agent of civil governance, outside the framework of the law and the Constitution. This Task Force may well fulfill the vision of all those fellow country men and women who think future national development and progress demand dictatorial and authoritarian governance.
Dr U Pethiygoda writing in the Island newspapers (30th/31st May 2020), considered Parliamentary democracy and the franchise irrelevant in governance. His desire to reject worthless institutions and norms, and his request to the President to create a disciplined society with his Presidential “whip”, appear to have been realized. Dr. Pethiyagoda will consider himself very fortunate.
What the future will hold for those of us who still believe in democracy and the limitation of State power in the public interest, is anyone’s guess.