Sri Lanka Supreme Court orders stay of parliament dissolution until Dec 7

The Sri Lankan Supreme Court has issued an interim order staying the gazette notification dissolving parliament and ordering fresh elections to the House on Jan 5.

The stay announced by a three-judge bench chaired by the Chief Justice Nalin Perera on Tuesday will be in effect until Dec 7. The Supreme Court further said hearings on the 12 petitions will take place on Dec 4, 5 and 6.

GOVT’S RESPONSE

Responding to the stay order, government spokesman Keheliya Rambukwella said that it had already stated that it would go by the verdict of the Supreme Court.

He however pointed out that the case is still on and that all is not lost.

“We believe that the final ruling will be in favour dissolution. There is always a silver lining in a dark cloud,” Ramukwella remarked.

Asked if parliament will meet on November 14 as programmed before dissolution, Rambukwella said: "Since parliament is to be recalled, it will meet on Nov 14 as planned earlier, unless some other developments take place in the meanwhile."

OPPOSITION'S CASE

Earlier on Monday, lawyers representing Sri Lanka’s opposition leaders and other interested entities presented their arguments against the dissolution of parliament before a three-judge Supreme Court bench comprising Chief Justice Nalin Perera and Judges Priyantha Jayawardena and Prasanna Jaywardena here on Monday.

As stated by counsel JC Weliamuna, the basic argument was that the 19th Amendment to the Constitution was made in 2015 to limit the President’s powers.

Earlier, the President had the authority to dissolve Parliament of his own accord after one year. This was changed through Article 70 which now states that the President may proclaim, summon, prorogue or dissolve Parliament, provided that the President does not dissolve Parliament until the expiration of a period not less than four years and six months. Also he cannot dissolve Parliament unless it requests the President to do so with a two-thirds majority (150 of the 225 MPs).

Article 70 (1) and 33 (c) do give the President power to dissolve Parliament but it also sets limits as aforementioned.

According to @PublicLaw_LKA, Weliamuna made it clear that it is not his case that parliament cannot be dissolved before its term. His case is that constitutional procedures in this matter needs to be followed. Parliament should be reconvened and the approval of 2/3 of its members sought for the dissolution.

Sri Lanka's newly appointed Prime Minister Mahinda Rajapaksa and President Maithripala Sirisena look on during a rally near the parliament in Colombo, Sri Lanka November 5, 2018. Reuters

Counsel MA Sumanthiran said that under the constitution, each organ of government is supreme in its own sphere. There are checks and balances between them, but one cannot extinguish the other in the manner in which the President did.

The dissolution is void ab initio and therefore anything that arises out of it, such as the General Election in the Proclamation, is illegal, he maintained.

Sumanthiran also pointed out that if Article 33(2)(c) is a standalone provision the President could prorogue parliament indefinitely without abiding by the limitations in Article 70. A reading of Article 33(2)(c) this way could lead to gross abuse of power.

Kanag-Isvaran representing the former Leader of the Opposition R Sampanthan said that Article 33(2)(c) is only an empowerment and not a standalone provision.

Article 33 (2) (c) says in addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power to summon, prorogue and dissolve Parliament.

But there are other provisions in the constitution that legitimately influence the meaning and ambit of art 33 (2) C, and these need to be followed.

Counsel G Alagaratnam said that the constitution cannot be read in isolation or in a manner that creates an absurdity. This would be the case if the President dissolved parliament the day after it was elected.

Hejaz Hizbullah who appeared for Prof S Ratnajeevan Hoole a member of the Election Commission, said that the right to franchise is not only about holding elections but also about respecting the choices of the people made in elections. A choice had been made by the  people in August 2015, but this now lies in a shambles.

Hizbullah asked for a stay order pending the final determination of this case because of the large cost of elections.

Former Attorney General Tilak Marapana said that even if  Article 33(2) is a standalone provision, the act of dissolution has to be done reasonably and not for a “collateral purpose” as President Sirisena has done since October 26 when he summarily sacked Prime Minister Ranil Wickremesinghe.

Viran Corea representing Centre of Policy Alternatives and its Executive Director P.Saravanamuttu, said that right to franchise is affected by the dissolution of parliament and asked for a stay of the presidential proclamation. The people had elected a parliament in August 2015 but it has been sacked summarily without going through the proper procedure involving the already elected parliament. (Source: @PublicLaw_LKA).

GOVERNMENT'S CASE

The Attorney General Jayantha Jayasuriya on Tuesday requested the Supreme Court to dismiss all petitions filed against the dissolution of Parliament as the President’s decision is consistent with the constitution of Sri Lanka.

Jayasuriya stated that the Gazette notification issued by the President dissolving the Parliament was constitutional and that the President had done so through the executive powers vested in him.

The attorney general referred to article 33 (2) (c) in the 19th Amendment, which states “in addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power to summon, prorogue and dissolve Parliament.”

The court has no jurisdiction to hear and determine the Fundamental Rights petitions against the dissolution of Parliament, he added. The powers of the President were clear and unambiguous as provided for in the constitution.

The attorney general said that the President invoked his plenary executive power, which was not pruned by the 19th Amendment and could not be pruned without a referendum.

“No provision of the 19th Amendment was called for a referendum and pruning of President’s powers must have been done via referendum. The 19th Amendment did not require a referendum because executive power was intact as it stood before the referendum. Executive powers cannot be eroded. It can be approved by people exercising the franchise.

“The Article 70(1) cannot be read in isolation when all provisions of the 19th Amendment taken together did not require a referendum because it did not erode the powers of the President,” he said.

He also said that although he received instructions from the President, his legal arguments in his capacity as the attorney general were impartial at all times.

He said in the event an interim order is given, it would amount to suspending the Constitution and the sovereignty of the people.