Vox Populi, Vox Dei. And Voice Of The Supreme Court?

M.A. Sumanthiran PC

JUNE 2, 2020

An Editorial note: Our writer N. Lohathayalan this evening submitted a short summary of M.A. Sumanthiran’s submission to the Supreme Court of the arguments of all those who spoke for the Petitioners in the just concluded elections cases. These cases asked essentially for the Gazette of 2 March 2020 to be nullified. 

One valid opinion among our editorial staff held that –  the court judgement having been delivered at 3:00 pm on 2 June 2020 not to permit the cases to go on, refusing “leave to proceed” –  the article is out of date and not to be published. The Supreme Court, in this school of thought, has rejected these arguments.

The Editorial Board, however, came to conclude that the article is eminently worthy of publication. Why so?

In an election the people vote. It is said the electoral verdict is sacrosanct. Indeed. It is also said vox populi, vox dei. That is, the voice of the people is the voice of God. But is it? The recent Sri Lankan election verdict is far from the voice of God. Yet, we do not question it, because it is a commonly agreed systemic democratic principle, right or wrong, that the people’s voice must be respected.

Likewise, our Supreme Court Justices are far from gods. Like the people of Sri Lanka, they too are susceptible to grave errors as in the Helping Hambantota Frauds where a Chief Justice boasted of how he helped certain politicians.

This is not to say that our justices are bad. Rather, it is to say that their verdict is not necessarily from God.

In a democracy, we have a systemic agreement to live by court decisions. It does not mean that court decisions are right, or free of political and career considerations. We simply agree to live by them.

In a democracy, knowledge is more important than systemic and blind obedience to popular verdicts, whether of the electorate or courts. Sumanthiran’s arguments in court are good. Just because the Supreme Court says otherwise, we do not need to think his arguments wrong. We are therefore publishing his summary in the belief that knowledge is golden, knowledge is power, and knowledge matters. So read and be aware that even the Supreme Court’s verdict has its detractors.

Common Summary in Supreme Court on 1 June 2020 Regarding all Elections Cases on Behalf of  All Respondents by M.A. Sumanthiran

By N. Lohathayalan –

The word Parliament came to be used in the thirteenth century AD. In the  year 1215 AD, what was known as the Great Council, consisting of Lords, in the Magna Carta was established as the Parliamentum. In warring with other countries, funds were raised through taxation with parliamentary approval.

Since the Sovereign was the head of Parliament, whenever a Sovereign died, Parliament was considered dissolved. In the seventeenth century there was a controversy over who the successor to the diseased king ought to be, and attendant upon it was a delay in deciding. To address this problem of not having a Sovereign, a law was enacted.  Accordingly, when a King or Queen died, parliament must be convened. Should the demise of the Sovereign occur when Parliament is in a dissolved state, the dismissed Parliament ought to reconvene  until the next King or Queen dismisses parliament or for a period of six months. A Parliament does not die. Even if dissolved, this situation gave rise to the new theoretical position that a dismissed Parliament may always be reconvened.

It is the British Parliament that is the source of all Parliaments. The traditions of the British Parliament are established as law in Sri Lanka. In Section 7 of Parliamentary Law (Powers and Privileges), it is said, the trends and ways in the British Parliament are the laws applicable to the Sri Lankan Parliament, and to know these trends and ways one must study the daily proceedings of Britannia’s Parliament whose footprints we follow.

British traditions have been internalized to our Parliament. Therefore, dismissing Parliament can never be equated to sending it into oblivion. The Parliament is an institution that lives with continuity. The only rationale for dismissing a Parliament is to select new members for it.  

Therefore, until new members are selected for a Parliament, the old members of Parliament may be summoned to meet if the need arises, It is this principle that is enshrined in Sections 70(7) and 155 in our Constitution. 

In Article 70(1) the President has been empowered to dismiss Parliament ahead of its completing its 5-year term. However, even that power is circumscribed by stating that if such dismissal is ahead of 4.5 years into the life of Parliament, it requires a parliamentary resolution approved by a two-thirds majority. It is because President Maithripala Sirisena violated this condition in dismissing Parliament in 2018 that a bench of 7 judges of the Supreme Court ruled against that dismissal in Rajavarothayam Sampanthan Versus Attorney General. 

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