By Shehan Chamika Silva
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 the parliament is not unconstitutional.
They said that the articles 33(2)c and 62(2) of the Constitution has given a substantive isolated power enshrined in the president to dissolve the parliament at any time. They said the phrasals used in Sinhala version of Articles 33(2)c and 62(2) of the 19th Amendment have different meanings compared to its English meaning and Sinhala.
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 the 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 evident that the section 33(2)c is an unfettered provision which allowed the president to dissolve the 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 has decided to dissolve the 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 legislation powers.
They said that the petitioners must prove that the decision of the president is arbitrary as to prove their case even though the president has made what is more sovereign friendly decision to hold an election.
However, making counter arguments into the hearing, President’s Counsel Kanagaiswaran, Thilak Marapana PC, Counsel Hijaz Hizbulla, and few other counsel also reiterated that the articles 33(2) c, 62(2) and 70(1) cannot be taken into consideration separately but have to be read harmoniously.
They argued that the article 33 or 62 has not mentioned how to dissolve parliament, only the article 70 provides as to how a proclamation is made so if the article 33 was to take in as a standalone provision , then president could dissolve parliament by just an order. But the president has issued a proclamation dissolving the parliament under the article 70 (5) and that means these provisions should be read harmoniously.
They said that the parliament’s intention was clear as it can be seen in the Hanzard. They explained it by reading what MP G.L.Peiris described about the outcomes of the 19 amendment in Parliament.
If a section should be read in isolation there are enough of articles in the constitution with the clause of ‘not withstanding’, which in this case not visible in either in article 33 or 62, hence,t they cannot be read in isolation at all, they said.
Further it was said that the dissolution of the parliament is not an exclusive executive plenary power but a power exercised by the head of the state not as an executive power as it can be seen even in the previous constitutions like 1972 and the Soulbury.
MP Sumanthiran also said that when there is an inconsistency in language, the practice is to read the both languages through which the Parliament passes acts, and those languages are not English and Sinhala but Sinhala and Tamil. So, if there is an ambiguity it should be read with Tamil version not English.
President’s Counsel Gomin Dayasiri making his submission said that the Supreme Court should ‘Let us go to the prorogation situation and elect a Prime Minister in Parliament’.
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