Delving into Constitutional abyss
As country’s time ticking away arguments in the Supreme Court meanders through words and letters in the Constitution
Making his final contentions, over the Fundamental Rights petitions filed against the President’s decision to dissolve Parliament, Kanag-Iswaran PC, who appeared for Petitioners said “…If the things go wrong, the reason will not be that we have a bad Constitution, but the man is vile”.
The Supreme Court on December 7 concluded the hearing of multiple Fundamental Rights petitions against the move to dissolve Parliament by President Maithripala Sirisena as well as several intervening petitions and extended the Interim Order against staying the dissolution proclamation till the judgment is delivered. The Judgment was reserved with the date to be notified to Counsel later.
Following are the arguments moved by the Petitioners on December 7 as their final contentions:
Summary of previous contentions of the respondent and the intervening parties
On the earlier occasions, making submissions on behalf of the President, Attorney General emphasised that the Supreme Court is precluded from exercising jurisdiction in respect of the alleged violations of Petitioners’ Fundamental Rights, and from granting the relief prayed for by the Petitioners, and that it has no jurisdiction on the President’s Proclamation of dissolution of Parliament.
Attorney General Jayantha Jayasuriya with Solicitor General Dappula de Livera, Senior Additional Solicitor General Sanjay Rajaratnam, Additional Solicitors General Demuni de Silva and Farzana Jameel, as well as Deputy Solicitor General Nerin Pulle, Senior State Counsel Shaheeda Barrie, State Counsels Kanishka de Silva and Manohara Jayasinghe instructed by Senior Additional Solicitor General Sepalika Tiranagama, in his submission further stated that the dissolution of Parliament by the President does not constitute executive and administrative action.
Making submissions on behalf of the intervening parties, President’s Counsel Sanjeewa Jayawardena, Ali Sabri PC, Gamini Marapana PC, Monohara de Silva PC and Canishka Vitharana were of the view that President’s decision to dissolve Parliament is not unconstitutional.
They said that the Articles 33(2)c and 62(2) of the Constitution have given a substantive isolated power enshrined in the President to dissolve Parliament at any time. They said the phrasal used in Sinhala version of Articles 33(2)c and 62(2) of the 19th Amendment have different meanings compared to its English meaning.
Referring to the questioned of Article 70(1), they elaborated that there are two chapters in the Constitution setting out powers vested in the Executive and the Legislature.
Their argument is that Section 33(2)c is a standalone Section set out under the Executive Powers Chapter of the Constitution and the Section 70(1), which describes about dissolution of Parliament comes under the power of legislation chapter set out in the Constitution, ‘allowing the legislation to call upon President to dissolve the Parliament ’.
They argued that it is prima facie evidence that Section 33(2)c is an unfettered provision which allowed the President to dissolve Parliament at any time. They said that people have elected the President and the sovereignty of people is with the president, and that cannot be curtailed. They also were of the view that the President prompted to take this decision as there was a breakdown in the Government and the whole country, so the President had decided to dissolve Parliament which he lawfully could do, to uphold the Sovereignty of the people because there is no better way other than to call upon an election to uphold the sovereignty of people.
They argued that Article 33(2)c was introduced into the 19 Amendment deliberately as the legislature could not erode the executive powers set out in the Constitution (to dissolve the Parliament) without a referendum, and therefore, Article 70(1) only an inclusion to enhance the check and balances and that is a realignment of the legislative powers.
President’s Counsel Kanag-Iswaran, who appeared on behalf of the Petitioners, said that one’s right to go before the court on Fundamental Rights violation, by an Executive or Administrative Action in terms of the Articles 17 and 126 of the Constitution, could not be ousted merely without a Constitutionally valid derogation.
Article 17- says that every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action
Mr Kanag-Iswaran said that it was only under the Articles 154 J and 170 that one had been provided total ousted clauses curtailing the jurisdiction of the court from hearing any case against actions arising out of those Fundamental Rights Articles.
He also said Articles 41 and 61A had provided partial ousted clauses limiting the jurisdiction of Court only to Fundamental Rights violations.
He said that the position maintained by the respondents that the Article 38 (Impeachment procedure) should have been the provision that was available to take actions against a President over a Constitutional Violation was wrong, since Article 38 which provided an impeachment procedure against President was limited to Parliament and not an ouster clause, which prevented the petitions from the access to the Article 126 (Fundamental Rights violation actions).
“Out of the two remedies, either one could be selected. It cannot be restricted unless by a clear ouster clause in the Constitution”, he said.
Answering the question that ‘whether the power to dissolve Parliament of the President could be regarded as an Executive Action’, he read the Article 35 (Immunity of the President) of the Constitution, which says, “While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity:
“Provided that ‘nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done’ or omitted to be done by the President, in his official capacity”
“Article 35 opens a gate for the citizens to take Fundamental Rights violation actions against ‘anything done’by the President in his official capacity,” he said.
He said that even an appointment of a President’s Counsel or a Supreme Court Judge by the President could be challenged under the Article 126 of the Constitution if there was a violation of Fundamental Rights protected under our Constitution.
Is the dissolution of Parliament a Plenary power?
Rebutting the intervening parties’ argument that the power of the President to dissolve Parliament was a plenary power, Thilak Marapana PC said, “that recognition is long gone tradition which may have existed in king’s time, and nowadays, even the actions of England’s Monarch is justiciable.”
Plenary poweris a powerthat has been granted to a body or person in absolute terms, with no review of or limitations upon the exercise of that power.
He further said the word used as ‘in addition’ in the Article 33 is only to add to the list of powers and duties vested on the President under that Article and nothing can be interpreted as to broaden the power.
He also said that there were no different types of dissolution called as Legislative and Executive dissolutions, but still, only the President could dissolve Parliament under the Article 70 (1) of the Constitution upon the two-thirds majority of the Parliament.
“We misunderstood the harmonious interpretation of the Constitution, ‘it is not that the Constitution must be read harmoniously with the matters happening in the country, but must be interpreted the provisions of the Constitution harmoniously,” ThilakMarapana PC.
Can President dissolve Parliament, when it is prorogued?
Answering to the argument that the dissolution process set out in the Article 70(1) of the Constitution can be taken away, when Parliament is prorogued, Mr Thilak Marapana said such situation was set out in the Article 70 (3) of the Constitution as follows:
70 (3) A Proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation: Provided that at any time while Parliament stands proroguedthe President may by Proclamation –
(i) Summon Parliamentfor an earlier date, not being less than three days from the date of such Proclamation, or
(ii) Subject to the provisions of this Article, dissolve Parliament.
He said this was a power given to the President to exercise not at any time but to exercise during only the time when Parliament is prorogued.He was of the view that in such situation President can dissolve Parliament ‘subject to the provision of this article’, Article 70 (1).
He elaborated the only three scenarios that the President could dissolve Parliament under this provision.
-Firstly, after the four and half years, the President can any time dissolve Parliament
-Secondly, if the time is within the four and half years, and a situation where Parliament is prorogued, then the President has to summon Parliament first (70(3)(i)) and pass a resolution with a two-thirds majority to dissolve the Parliament .
-Thirdly, when there is a resolution passed by Parliament with a two-thirds majority then the President can dissolve the Parliament.
“This Article 70(3) is not an unworkable provision, it caters how the President should prorogue and dissolve Parliament subject to the other provisions of the same Article”. T. Marapana said.
Mr Marapana also pointing the importance of the dissolution process under the Article 70 (1) of the Constitution, explained that under the Article 48 (2)
“If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister…”,- there is a reference to Article 70, and that means the President can only dissolve Parliament according to the procedure set out in Article 70(1).
Do the Sinhala, Tamil and English texts have different meanings?
Replying to the argument of differences of the text in Article 62(2), M.A. Sumanthiran said the meaning of the text in both -English and Sinhala –was the same but only the structuring of sentences differed.
62 (1) There shall be a Parliament which shall consist of two hundred and twenty-five members elected in accordance with the provisions of the Constitution.
(2) Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament.”
He said that Article 62 was about the term of Parliament in the general sense.
“It says firstly that there is a five years term, then it says “unless sooner dissolve”, because there is a possibility of Parliament being dissolved prior to its full term under the Article 70 (1)”, he said. Mr Sumanthiran was also of the view that Article 62 does not mention who can dissolve Parliament and that it is enough to be identified this provision as a common Section which provided the term of the Parliament.
“The phrase, ‘Unless sooner dissolved’ is a phrase there in any constitution in the world, where Parliament is not a fixed term”, he said.
Further elaborating his legal argument Mr Sumanthiran moved that Parliament, in fact, could not make laws only in Sinhala and Tamil, and it had to make them available in English as well (in three languages).
Referring to the 16th Amendment and the Article 23 of the Constitution, in a situation of inconsistency between languages, he said the law doesn’t say that the Sinhala language should prevail, when there is an inconsistency among every language, but only says when inconsistency between Tamil and Sinhala, so the English has been left alone for a good reason, since some provisions have to be interpreted with its original translated version.
“Such as Article 10, 11 and 12 of the Constitution is borrowed from international instruments, and in forty years of jurisprudence in the Supreme Court has interpreted their English meaning, not the Sinhala translation, which has differences. Similarly, this Article 62 clause which is in Sinhala as “Unless sooner dissolved” has to be read with its origin, which is borrowed from the English text of Soulbury Constitution to explain the none fixed term Parliament ”, Sumanthiran said.
He also said that even in Tamil and Sinhala texts there was no inconsistency as such because when one read the Tamil version it was clearly in line with the English meaning.
“The meaning of inconsistency is a very high degree matter, as in this situation there is none as such, since, all the confusions will go away if you go and read the both the Sinhala and Tamil version of the Article 62,” he said.
33 (2) 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 -
(c) To summon, prorogue and dissolve Parliament;
He also referred to Article 33(2) c and dealt with the clause of “In addition”. Mr Sumanthiran said, “There are AdditionalSolicitor Generals in the Attorney General’s Department, but are we saying that those ASGs have more power than that of the Attorney General because they are ‘additional’? No! The phrase ‘in addition’ is there in Article 33(2) to depict the powers that the President has in the supplement, not that it should be interpreted alone, but with other relevant Articles as well (with Articles 62(2) and 70(1)).
“Article 33 (2) c is about, ‘who can dissolve the Parliament ’, Article 62(2) is about the general term of a non-fixed term Parliament and the possibility of its prior dissolution, and Article 70 is the provision says how the dissolution is done, in what means, on what conditions. These provisions must be interpreted harmoniously”, Sumanthiran said.
The dispute over Article 70(5)
He also explained about the dispute over the Article 70 (5) (a) & (b)
70 (5) (a) A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.
(b) Upon the dissolution of Parliament by virtue of the provisions of paragraph (2) of Article 62, the President shall forthwith by Proclamation fix a date or dates for the election of …..
He said that the sub-Section (a) in this Article is talking about a proclamation that could be issued when Parliament was dissolved according to the process explained in the Article 70 (1) before the four and half years’ time. And the (b) is referring to Article 62 because it speaks about a proclamation that should be issued when Parliament is automatically dissolved in the event expiration of the term.
What decided in Supreme Court determination case in 2002
There was an argument that on an earlier occasion over the Supreme Court’s determination in the case of ‘In Re 19th Amendment Bill’ in 2002, that the President’s power to dissolve Parliament cannot be limited unless by a referendum. However, Mr Sumanthiran clarified that in this case in 2002 the Supreme Court did not strike down such fetter being made over the dissolution power of the President since the proposed amendment in 2002 is different to what proposed in 2015.
He was of the view, that in the 19th Amendment of 2015, limited only the Power of the President to dissolve Parliament to four and half years, but still, even with a resolution of a two-third majority, the discretion is with the President to dissolve it. In 2002 determination case, Justice Sarath N. Silva observed the possibility of restricting the dissolution power of the President if the ‘Checks and Balances are maintained properly’, so our argument is that the 19th Amendment has restricted the power of the President in a way that caters the Checks and Balances,” he said.
He was of the view that, the Supreme Court in 2015 determination allowed for such limitation, not because the inclusion of the Article 33(2)c but such limitation can be done with the collaboration of the concept of ‘Checks and Balances’.
Supporting the above argument, President’s Counsel Thilak Marapana also said that the Article ‘33 (2) c’ which was brought in by the 19th Amendment, was included as an enumeration to the powers and the duty of the President.
“By adding the dissolution of Parliament also in the Article 33 (2) as an executive act allows such act to be justiciable under Article126 of the Constitution”, he said.
Supreme Court determination over the 19th Amendment in 2015
Mr Sumanthiran also showing a written submission made by the Attorney General in the Supreme Court determination case over the 19th Amendment Bill in 2015 said, that the AG too observed that there were limitations to the President in dissolving Parliament according to the proposed Bill, limiting to the situations where after four and half years of Parliament term and with a two-thirds resolution passed by the Parliament.
He pointed out the AG’s stance on that occasion was that the mandate received from the people by Parliament under Article 4(a) of the Constitution is distinct by the mandate was given to the Executive under Article 4(b) of the Constitution, and that the question needs to be understood in the light, if the President, who is not legislatively elected, prematurely dissolved the Parliament.
Article 4-The Sovereignty of the People shall be exercised and enjoyed in the following manner:–
(a) The legislative power of the People shall be exercised by Parliament,
(b) The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President
Sumanthiran was also of the view that, if the intervening and respondent’s argument to be accepted, it would render the Article 70(1) superfluous or redundant, and that is not the way one must give effect to the provision of a Constitution.
70 (1) The President may by Proclamation, summon, prorogue and dissolve Parliament:
Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.
Who is responsible for the confusion
Dr Jayampathy Wickramaratne also appearing on behalf of the Petitioners replied to the argument put forward by the intervening parties, that there was a confusion in the country which led the President to take this decision to dissolve Parliament .
He said, “Earlier in the year there was a No Confident Motion passed against the government, which was successfully defeated, and until the October 26, the Government was functioning smoothly, as even according to the Hansard, on 25th and 26th of October there were several Money Bills were passed. Even in the evening of October 26, there was a resolution passed over a supplementary.
Then a Member of Parliament being appointed as the Prime Minister, who is still unable to prove is the majority. Later Parliament was prorogued till November 16 and subsequently, it changed till November 14. And amidst all, then the President dissolve Parliament on November 9, which was challenged before the Supreme Court and the Court gave an interim order staying the dissolution on November 13.
Following that Parliament gathered several occasions and passed No Confident Motions against the Government. This confusion was created by the President, so he should go to the people and ask whether he has done so far was correct or not by holding a presidential Election after January 9, 2019”
The objective of the 19th Amendment
He also observed that the reason to bring four and half year’s restriction on the dissolution of Parliament is to provide time for different parties for a unity government. “The main objective of the 19th Amendment is to provide an opportunity for parties to work together at least for four and half years,”he said.
There was an argument about the way in which these petitions were filed under the Article 12 (equal protection of the law) was inadmissible since the petitioners have to prove that they have been treated differently due to this dissolution in a comparison.
Citing several precedents, Dr Wickramaratne said that over the past years the Court had adopted a new doctrine when examining such situations.
“Equality is a dynamic concept and that cannot be confined, because the Equality and Arbitrary Actions are two sworn enemies,” he said.
He also said if the intervening parties’ argument is to be accepted, the President will have a power to dissolve the Parliament at any time even in a situation where an impeachment process is initiated. “This argument would render that the President could dissolve the Parliament even at a time immediately after an impeachment process initiated in the Parliament against him, so it would mean that the Parliament could never have an impeachment against him”, he said
Constitution and the people’s right
Appearing for the Petitioners, Senior Counsel Viran Corea said that the Constitution was not a riddle, the common-sense approach in interpreting the Constitution was that country could operate with Rule of Law collectively.
“Constitution is a vehicle. When it is needed to stop and applied breaks, it should be stopped, because it is intended to do so,” he said.
“In Article 33(2)c the power is there for the President to dissolve Parliament but in Article 70(1) there is a restriction on that”, he said.
President’s Counsel J.C.Weliamuna was also appearing on behalf of the Petitioners counter-argued about the intervening parties’ contention of ‘go to the people to solve the confusion’.
He said that the people's voice was only be heard in a prescribed manner“election has to be held in a prescribed form by the Constitution not after every morning tea, because going back to the people is also regulated by the Constitution and the Franchise cannot be used as a defense in this situation,” he said.
Mr Weliamuna also citing various precedents observed that the Fundamental Rights violation jurisdiction is a sui generisjurisdiction, so that the all of the petitions come under the Supreme Court’s jurisdiction.
President’s Counsel Geofrey Alagaratnam said that the Provisoof the Article 70 (1) was not a mere provisobut an exception, as it has two limbs, firstly the limitation of not allowing to dissolve Parliament before four and half years’ time and secondly the requirement of two-thirds resolution over the dissolution.
Giving the gratitude for the seven Bench Supreme Court Justices for allowing the judicial process to be gone through by hearing the case for four consecutive days, Senior Counsel Hijaz Hizbullah stressed the importance of the hearings.
He was of the view that the interpreting of the Constitution is like ‘connecting the dots’, and that one would not know the real picture unless one started connecting all the dots which were relevant to the picture.
He also referred to a remark of the President which said that he would not appoint a certain member of Parliament as the Prime Minister even if the all 225 members of Parliament is agreed.
“Considering the Article 1 of our Constitution (Sri Lanka shall be known as the Democratic Socialist Republic of Sri Lanka) Mr Hijaz Hisbullah asked:
“Is that statement of the President a Democratic, or a Socialist, or a Republican?”
He also said that it was true that on two occasions the Supreme Court of Pakistan had decided that the President could disregard the Constitution in breakdown situation in the country, however, the Indian Supreme Court decided totally different to that by holding that the Constitution could not be violated at any time.
“Now see the difference of the two countries’ democracy level after such decisions”, he said.
In a final statement considering the upholding of the democracy in the country, he said “If not for your lordships, who? if not now when?”
Constitutional provisions in dispute
*Article 4- The Sovereignty of the People shall be exercised and enjoyed in the following manner: – (a) the legislative power of the People shall be exercised by Parliament, (b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President
*Article-33 (2)- 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 …- (c) to summon, prorogue and dissolve Parliament;
*Article 62 (2)- Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament.
*Article70 (1)- The President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favor.
*Article 70 (3)- A Proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation: Provided that at any time while Parliament stands proroguedthe President may by Proclamation –
(i) summon Parliament for an earlier date, not being less than three days from the date of such Proclamation, or
(ii) (ii) subject to the provisions of this Article, dissolve Parliament.
*70 (5) (a) A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.
(b) Upon the dissolution of Parliament by virtue of the provisions of paragraph (2) of Article 62, the President shall forthwith by Proclamation fix a date or dates for the election of …..
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What does the Supreme Court have to decide?
1. Can the Article 33 (2) c (President’s power to dissolve parliament) be interpreted as a stand-alone provision
2. Meaning of the phrase in Article 33 (2) as ‘In addition’
3. Does the Article 62 (2) empowers President to dissolve the Parliament at any time
4. Meaning of the phrase in the Article 62 (2) as ‘unless sooner dissolved’
5. Is the Article 70 (1) proviso a fetter imposed over the power of the President to dissolve the Parliament before four and half year’s term of the Parliament
6. Can the President at any time dissolve Parliament notwithstanding the Article 70 (1) when the Parliament is prorogued?
7. What is the meaning and the difference of the Article 70(5) (a) and (b)
8. Is the President’s decision to dissolve the Parliament an act of the Executive which can be challenged through a Fundamental Rights violation petition?
9. Interpret the actual effects of the Articles 3, 4(a) and 4(b) of the Constitution, which speaks the sovereignty of the people
10.What was the intention of the legislature in the 19thAmendment
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Ten fundamental rights petitions against the President’s declaration to dissolve Parliament came up before the bench comprising Chief Justice Nalin Perera and Justices Buwaneka Aluwihare, Sisira J. de Abrew, Priyantha Jayawardena, Prasanna S. Jayawardena, Vijith K. Malalgoda and Murdu Fernando. Five petitions have sought to intervene to counter the main petitions.
The petitions were filed by MPs Kabir Hashim and Akila Viraj Kariyawasam of the UNP, Lal Wijenayeke of the United Left Front, Centre for Policy Alternatives (CPA), Election Commission Member Prof. Ratnajeevan. H. Hoole, Attorney-at-Law G.C.T. Perera, the Sri Lanka Muslim Congress, the All Ceylon Makkal Congress and MP Mano Ganesan.
K. Kanag-Iswaran PC, Thilak Marapana PC, Dr Jayampathi Wickramaratne PC, M.A. Sumanthiran PC, Counsel Niran Anketell, Viran Corea, Ikram Mohamed PC, J.C. Weliamuna PC, Ronald Perera PC, Hizbullah Hijaz and Suren Fernando appeared for the petitioners. Gamini Marapane PC with Naveen Marapane, Sanjeeva Jayawardane PC and Ali Sabry PC appeared for the intervenient petitioners opposing the main petitions.
*The writer, a Daily Mirror Court Reporter and a law student, has gathered above findings by listening to the oral submissions made on December 7, 2018, at the Supreme Court, and he can be contacted via- shehandailymirror@gmail.com
