A Country Without A Parliament Is No Democracy: Sumanthiran Argues As Hearings Begin On FRs

MAY 18, 2020

Eight fundamental rights petitions concerning the date of the parliamentary elections and President Gotabaya Rajapaksa’s adamant refusal to reconvene the dissolved Parliament were taken up for hearing before a five judge bench of the Supreme Court on Monday (18).

Sumanthiran

The hearings, which were held in the Supreme Court’s ceremonial court 501 in order to maintain social distancing during the corona virus pandemic.

The highly charged cases could have massive implications on politics and governance, legal observers said, as the Supreme Court steps in to arbitrate a thorny constitutional tension between President Gotabaya Rajapaksa and the old Parliament in which his party does not hold a majority.

Appearing for the Attorney General was Additional Solicitor General Indika Demuni De Silva. President Gotabaya Rajapaksa’s own lawyer Romesh De Silva PC appeared on behalf of the Secretary to the President P.B. Jayasundera.

President’s Counsel M.A. Sumanthiran began arguments for the petitioners representing Journalist and civil activist Victor Ivan and Charitha Gunaratne.

Sumanthiran PC prefaced his submissions by setting out the history of Parliament and explaining that Parliament is a continuing institution that does not cease to exist because it has been dissolved. “During dissolution, Parliament only goes into sleep mode” the senior lawyer told the Supreme Court. He added that it can be reawakened through Article 70 (7) of the constitution which empowers the President to reconvene a dissolved Parliament during a national emergency.

Setting out the basis on which the majority of petitions have been filed challenging the President, Sumanthiran PC submitted to court that the President’s power to dissolve parliament prematurely – that is before its 5 year term was over – and call early elections had specific restrictions attached to it as stipulated in Article 70 (5) of the Constitution.

Article 70 (5) of the constitution is clear that after Parliament is dissolved early by the President, a new Parliament must convene NO LATER THAN three months after the date of dissolution. In the present context, the three month constitutional deadline for Parliament to meet is June 2.

The petitioners’ case clarifies that the June 20 election date set by the Elections Commission alone exceeds the period of time that the country can be governed without a Parliament as set out by the constitution. Counsel for Gunaratne and Ivan pointed out that the President had gone ahead and called an early election despite the fact that the COVID-19 was already a full blown crisis, and only days after the dissolution in March, the World Health Organisation had declared a pandemic.

“The Elections Commission has done its own thing, fixing elections on June 20th being totally blind to the constitution,” Sumanthrian argued. “Isn’t this a joke being played on the sovereign people by the Elections Commission and the Executive President?,” he queried.

Counsel for the petitioners Ivan and Gunaratne explained that the presidential proclamation dissolving parliament was ab initio void because the proclamation set out an April 25th date for the election and May 14th as a date for the new Parliament to sit.

“April 25th has come and gone. May 14th has come and gone and there is no new Parliament now. Therefore the proclamation is now erroneous on the face of record, thus it is void” Sumanthiran PC explained at length.

Explaining how crucial parliament is to a constitutional democracy, Sumanthiran illustrated that the three organs of the state – the Executive, Legislature and the Judiciary – were like three legs of a tripod. “If one falls, the whole thing collapses.”

“A country without a Parliament is not a democracy,” Sumanthiran asserted.

The President, Sumanthiran explained had several keys to end the deadlock created by the delayed elections but he had failed to use it. Therefore the final key to end the deadlock lay with the Supreme Court of Sri Lanka, the President’s Counsel said.

He appealed to the Supreme Court to safeguard the institution of Parliament which is now under lock and key and under army guard.

Sumanthiran went on to state that the June 20th election could in any event not be held now as several legal stipulations could not be met by that date.

The Parliamentary Elections Act requires at least five weeks of campaigning to be allowed for before a polling date.

Recalling the Supreme Court judgment in the 2018 dissolution cases, Sumanthiran said that the President does not have untrammeled plenary power. He recalled that a 7 judge bench of the Supreme Court had held that the president’s powers were subject to and curtailed by the constitution.

Listing the challenges in conducting elections under the present pandemic situation, the counsel for Ivan and Gunaratne explained that sufficient laws would have to be enacted to conduct elections under the present pandemic conditions. Only Parliament could pass those laws, he explained, adding that other branches of Government could not be allowed to usurp the sole power of Parliament to legislate.

Supreme Court has always jealously guarded Parliament’s power to legislate, he added.

“What has to be done by legislature must be done by legislature not the executive like the curfew being declared by the Presidential media division’s press release,” Sumanthiran charged.

Preliminary objections were raised by Counsel for Dr Jayasundara and the AG appearing for the President and as AG. Both Romesh De Silva PC and ASG De Silva pointed to the fact that the petitions did not meet the time bar required to file fundamental rights applications. ASG De Silva also said that the petition filed by Gunaratne had failed to cite the President as a respondent even though the petition dealt with the functions of the President. Further submissions on the preliminary objections would be made at a subsequent point in the hearings.

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