Lanka May Cease To Be A Democracy By June 1 If Court Does Not Resolve Constitutional Deadlock: Counsel Suren Fernando

Gotabaya Rajapaksa

MAY 19, 2020

Unless Parliament is functional by June 1, Sri Lanka may cease to be recognized as a democracy, with the current constitutional deadlock posing a greater threat to democratic governance than the 2018 coup, attorney-at-law Suren Fernando told the Supreme Court as proceedings in the eight FR cases before the courts on the matter of reconvening Parliament resumed on Tuesday.

The Supreme Court must step into the resolve the deadlock before that date, the lawyer urged.

Eight petitioners, including the new party led by Opposition Leader Sajith Premadasa went to Supreme Court after President Gotabaya Rajapaksa has flatly refused to reconvene the legislature he dissolved on March 2, essentially washing his hands off the fact that polls to elect new MPs could be delayed and the country could be without a functioning Parliament indefinitely due to the prevailing Covid-19 crisis.

Fernando is appearing as Counsel for the Premadasa led Samagi Jana Balawegaya and former MPs Champika Ranawaka and Kumara Welgama.

“The President is asking the courts to give him a tranquilizer gun to shoot Parliament. We must remember that that gun has more than one bullet,” Fernando warned during his submissions before the top court. The country was meant to be governed by three organs of state, Fernando elaborated, not one and not even two.

During his submissions Fernando warned that the threat facing democracy today was even graver than the one the country faced during the 2018 coup. At least then there would have been a new Parliament within the stipulated time frame, while in this situation, the country could be governed without a legislature for an indefinite period of time.

In March the Elections Commission postponed the parliamentary election and in April the Commission declared June 20th as the date of the postponed election. The Elections Commission made its decision after successive appeals to the President to seek the opinion of the Supreme Court because an election could not be held under pandemic conditions by the stipulated constitutional deadline of June 2, 2020 for the new Parliament to meet. President Gotabaya Rajapaksa, who critics say is using the pandemic conditions to establish presidential rule with the military flatly refused to seek the opinion of the country’s highest court. Gotabaya Rajapaksa replied to the Commission saying he “saw no reason why the election could not be held by in May” even as his Government continued to impose sporadic and staggered curfew across most districts in the country, and arrested thousands of people violating the restrictions on movement.

Left with no alternative and unwilling to petition to the Supreme Court itself, the Commission went ahead and postponed elections beyond June 2.

Fernando made the argument that the President could not be faulted for choosing to dissolve Parliament on March 2 but when he realized that the April 25 election could not be held because the country was dealing with the corona virus outbreak, he should have taken action to rescind the gazette.

Like President’s Counsel M.A. Sumanthiran who argued on Monday that Parliament was a continuing institution that only went into sleep mode even during dissolution, Fernando also explained that dissolution did not render Parliament “dead”.

“Dissolution in our constitution is not permanent. It is not termination like dissolution of marriage or partnership. Parliament is not dead until a new Parliament is elected. If that was so, how could Article 70 (7) allow the President to summon it? You can’t summon a dead Parliament,” Fernando argued.

To construe that dissolution means Parliament was dead would render other provisions of the constitution like 70 (7) meaningless, because article 70 (7) would be unworkable, he explained.

The general rule according to Article 62 of the constitution was that the life of Parliament was 5 years, Counsel for SJB, Ranawaka and Welgama continued. If Parliament had not been dissolved in March 2020, Parliament would function until September. Article 70 provides an exception to the general rule about the life of Parliament, allowing the President to dissolve Parliament prematurely, provided certain key conditions are met.

Under the provisions of Article 70, the President may dissolve Parliament (a) After it completes 4.5 years of its 5 year term and (b) provided the new Parliament meets no later than 3 months after the date of dissolution.

The Counsel for SJB submitted that for Article 70 to be invoked by the President, it was mandatory for Parliament to be able to sit within three months of dissolution.

Ironically in the 2018 dissolution case it was the President’s power to dissolve if the condition of 4.5 years was not met that was challenged in SC.

Fernando pointed out that Article 33 (1) (a) imposed a duty on the President to respect and uphold the constitution. “This is a situation where the constitution is not respected and upheld because one organ of the Government is not functioning,” he explained, adding that the President had a duty to rescind his proclamation when he realized the conditions imposed by the constitution on his power to dissolve Parliament could not be met. “When you have the power you must not abuse it. But in necessary situations you must also use it,” Fernando argued.

The presidential proclamation dissolving Parliament must enable the legislature to meet within three months of the date specified in the proclamation, Fernando told the Supreme Court. An election was not held on the time stipulated in the proclamation and the new Parliament did not meet on the stipulated date. “Therefore the proclamation is unworkable and is frustrated and cannot stand valid in law,” Fernando charged.

During his submissions, Fernando also sounded the alarm about the ongoing withdrawal of public funds by the President which no longer had the approval of Parliament as mandated by the constitution.

“No withdrawal from the consolidated fund can be warranted by the executive without the approval of Parliament,” he explained.

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