FR petition against dissolution of Parliament – Petitioners’ final argument:

Delving into Constitutional abyss 

As country’s time ticking away arguments in the Supreme Court meanders through words and letters in the Constitution

By Shehan Chamika Silva 

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: 

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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. 

Question of Jurisdiction

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.

Executive action or not

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 …..

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

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

Fort Magistrate questions unusual behaviour of Police in facts reporting

CDS Guneratne released on conditional bail

 -Fort Police has not investigated properly into the alleged threatening to a key witness by the CDS- Fort Magistrate

-Fort Magistrate decides to remove Fort police from investigating the alleged threatening to a key witness by CDS

-Magistrate Dissanayake questions Police whether they had given a great degree of care not to mention the offence in the facts report for some reason

By Shehan Chamika Silva 

Chief of Defence Staff (CDS) Ravindra Wijegunaratne who was arrested by the CID on the charge of harboring ‘Navy Sampath’ alias Chandana Parasad Hettiarchchi, who is the first suspect of the case on disappearance of 11 youths in 2008 and 2009 was today ordered to be released on conditional bail by Colombo Fort Magistrate’s Court.

   

The suspect was released on two sureties of Rs. one million by Fort Magistrate Ranga Dissanyake and directed not to breach any of the bail conditions of, not to interfere with witnesses or obstruct them, prevent him from obstructing the investigation, and not to use suspect’s office as a mean to intimidate any of the witnesses or investigative officers of the inquiry, as it could reverse the bail of the suspect.

The Magistrate also considering the another case which had filed by a key witness of the case on disappearance of 11 youth ‘Galagamage Laksiri’ observed that the Police has failed to inquire on the matter properly.

On an earlier occasion, Laksiri Galagamage, a key witness of the case on disappearance of 11 youths had made a complained to the Fort Police stating that CDS Ravindra Wijegunaratne and his aides had attempted to assault and shoot him.

Then the Fort Police filed a facts report about this incident in court and had sought several court orders on that regard.

At the onset of the yesterday’s inquiry (relating to the harboring of Prasad Hettiarachchi), appearing for the CID, Chief Inspector Thisera informed the Court about what transpired from the statements recorded by the CID with the Chief of Defense Staff Ravindra Guneratne in a recent interrogation.

Giving the statements, suspect Guneratne has denied the all allegations put forwarded against him saying that neither he did know Prasad Hettiarachchi (who was absconding the prosecution) nor was with the knowledge about any grant of money to him.

When Colombo Fort Magistrate Ranga Dissanayake questioned, the CID informed Court that it has no objections for granting bail under the section 14 of the Bail Act over the second Suspect on this occasion.

President’s Counsel Anuja Premaratne, Senior Counsel Asela Rekawa, with Counsel Sajitha Jayawardena appearing for the suspect apprised the court there is no reason to keep their client in remand custody if the prosecution is not objecting for the bail at this occasion.

However, at this moment, Fort Magistrate Ranga Dissanayake observed the relevancy of the related case to this inquiry (an alleged complained lodged by the key witness Galagamage Laksiri with the Fort Police over death threats and threats of abduction received by him from the suspect) for the consideration of the bail.

The Fort Police had reported facts about this threatening case in a ‘facts report’ to the Fort Magistrate’s Copurt.

The Magistrate perused the report and identified some flaws of the report as it had not mentioned the wrongdoing (offence according to the law) on which the inquiry has initiated by the Police and he observed that the police has indicated the suspect’s name (Ravindra Guneratne) as ‘respondent’ in to the inquiry, which is not accordance with the Criminal Procedure Code.

At this moment, the Magistrate Dissanayake questioned the police officer who was representing the Fort Police regarding possible reasons for the unusual way of the report.

Magistrate questioned whether the Fort Police had given a great degree of care not to mention the offence specifically or the suspects relating to the complaint for some reason.

However, the investigative officer relating to this incident was not present before the Court at this moment and the Court adjourned until the Officer in Charge of the Fort police arrives to the Court.

Fort Magistrate Ranga Dissanayake: On what basis you have indicated, Ravindra Gunaratne as a ‘respondent’ in this ‘facts report’, as there can be only suspects in such cases, only in Supreme Court Cases there can be respondents not in here?

Fort Police: We filed this facts report based on the initial complaint received to us from Galagamage Laksiri.

Fort Magistrate: Were you aware of the fact that, this complainant was a witness in another case and entitle to protection under the section 8 of the ‘Witness and Victim Protection Act 2015’?

Fort Police: Yes

Magistrate: What actions you took there after on that regard?

Police: We recorded statements from 14 individuals from that regard and have sent the CCTV footage relating to this threatening incident to the Government Analyst for further inquiry.

Magistrate: Now, tell me whether Ravindra Gunaratne can be included or named as a suspect based on the investigation that you have carried so far? Your answer is very decisive to the second suspect (Ravindra Guneratne) of the other case in order to consider grant him bail, therefore, reply with clarity.

Police: Based on the facts found so far, there is no sufficient evidence to name Ravindra Guneratne as a suspect in this threatening case.

At this moment Magistrate Ranga Dissanayake observing that the Fort Police is not conducting the investigation into this threatening case properly decided to act under the section 119 of the Criminal Procedure Code and removed the inquiry from the Fort Police.

And the Magistrate also directed the Western Province Senior Deputy Inspector of Police to transfer this threatening inquiry to a suitable division or body from the Fort Police.

The Fort Magistrate observed that he did not consider giving bail for the suspect on the earlier occasion, since there was possible interference with witnesses and the investigation by the suspect were transpired from the facts. However, on this occasion as the CID did not object for the bail and the Fort Police expressed no sufficient evidence against the other threatening case, the Magistrate granted a conditional bail for the suspect.

'Suspects incarcerated for ten months', an exceptional circumstance for bail'- Counsel

By Shehan Chamika Silva

In a bail application filed on behalf of suspect Kasun Palisena regarding the magisterial inquiry into the bond scam, Senior Counsel Jeewantha Jayathilake said today that both suspects being incarcerated for ten months is on its own sufficient to be considered an exceptional circumstance to grant them bail.

Citing a precedent he said when considering someone's bail application, granting bail should be the rule and refusing it the exception.

Counsel said the Court should not reject a person's bail application so as to punish him, as it would amount to a violation of the constitutionally protected right of 'presumption of innocence' of that person.

He said though both suspects could not be deemed to be guilty at this stage, they have been denied their rights by being incarcerated for ten months.

Observing that the Attorney General and the CID had ample time to inquire into the facts in this case, the counsel said his clients had nothing to do with the first suspect Arjuna Mahendran absconding court had no relevancy with regard to suspects Aloysius and Palisena.

He said during the revision bail application at the Court of Appeal, one of the reasons set out by the Court in rejecting the application was that the 'current stage is premature to decide or consider on the inclusion of the Public Property Act as the suspects were not yet charged in any court specifically as per Prevailing law'.

However, he brought two exceptional grounds on behalf of his client (Kasun Palisena) as the law requires for suspects who were remanded under the Public Property Act.

He said firstly, being incarcerated for ten months can be regarded as exceptional ground on the basis of objective observation as the suspects were remanded for a long time and secondly, he sought bail pointing to a situation that suspect Kasun Palisena was undergoing at the moment on humanitarian grounds.

The counsel said suspect Palisena's second child, who is nine months of age, is currently suffering from a special disability due to premature birth and as a result the child is in need of a great degree of interaction and support from parents while under treatment.

He said child's mother was also suffering from various health problems, which resulted in her being incapable of taking care of the child alone and that the situation was quite exceptional as the mother was jobless while her husbands bank accounts have been frozen due to the inquiry.

The counsel moved to consider the exceptional bail application on humanitarian basis as everyone in remand custody did not have children with a special need with similar conditions.

Colombo Chief Magistrate Lanka Jayaratne subsequently, directed the prosecution to file their written objections with regard to the bail applications filed on behalf of both suspects on or before December 18. 

Meanwhile, Perpetual Treasuries Ltd owner Arjun Aloysius and its CEO Kasun Palisena were also ordered to be re-remanded till December 18 by the Magistrate in the magisterial inquiry in which they are accused of conspiring with Arjuna Mahendran to misappropriate public funds to the value of Rs.688 million at the bond auction held on February 27, 2015.

Perpetual Treasuries Ltd de facto owner Arjun Aloysius, its CEO Kasun Palisena were also re-remanded by the Chief Magistrate till December 18 over the parallel magisterial inquiry into the Bond scam on deleting phone call data from Perpetual Treasuries Ltd voice recording system and fabricating evidence to the Bond Commission.

Court can’t rely on draft documents: Respondent's Counsel

*Parliamentary proceedings are admissible as evidence under the law and not impeachable by Court: K. Kanag-Iswaran PC

By Shehan Chamika Silva

President's Counsel Kushan de Alwis, Ali Sabri and Romesh de Silva -- appearing for the respondents in the Quo Warranto writ petition filed by 122 MPs questioning the legitimacy of Prime Minister Mahinda Rajapaksa and his government to hold office -- said the applications should be dismissed on the basis that the Hanzard produced as a supporting document was not a final thus not admissible in Court.

Kushan de Alwis PC said the petitioners had sought relief based on a document which can be corrected even tomorrow, because of a two-week time limit for the parliament proceedings as published in the Hanzard to be corrected if necessary.

He said the applications were filed in Court on November 23 based on the Hanzard prepared on the proceedings that took place in Parliament on November 14 and as such there was a question on the finality of the Hanzard, because as at that date it was an uncorrected document.

Counsel said the Hanzard on which the petitioners based their applications could not be admissible or entertained in Court because the Court could not rely on draft documents, which are yet to be finalised.

He said the burden of proof on whether the documents were final was the responsibility of the petitioners and that an application based on a draft document was sufficient enough to be dismissed.

President's Counsel Romesh de Silva said it was a misrepresentation of material facts by the petitioners because they had not informed Court that the Hanzard that they had relied upon was an uncorrected version.

President's Counsel Ali Sabri said the petitioners, in their application, despite challenging the appointment of the respondent as prime minister by the President in the first place, they are seeking relief only on the matters which took place on November 14 and onwards.

He said the manner in which the parliamentary proceedings took place on November 14 was nothing but a sham because the manner in which the motion to suspend the Standing Orders was decided and the no-confidence motion was voted on through a division of ‘Ayes and Noes' contradicted the parliamentary SOs.

Associating with the President's Counsel Gamini Marapana's earlier argument, Ali Sabri PC was of the view that the proclamation issued by the president on November 9, 2018 to dissolve parliament will stand dissolved despite the interim order given by the Supreme Court was not the final determination of the Court because when something is dissolved it cannot be suspended, and the interim order is prospectively effected, therefore the decision of dissolution stands and as such Parliament could not have even met on November 14.

Responding to the arguments by the counsel for the respondents, President's Counsel K. Kanag-Iswaran said the parliamentary proceedings were admissible as evidence under the law and not impeachable by Court.

He said the question here was about the respondent (Mahinda Rajapaksa) holding on to illegal power, as Prime Minister the concern should be on the illegality, because under the Article 48 when there is a no-confidence motion passed, the Cabinet stands dissolved.

Kanag-Iswaran PC said there could not be any dispute on the matter of the no-confidence motion because 122 parliamentarians had filed this petition.

MR and Cabinet restrained functioning

By Shehan Chamika Silva

Court of Appeal today issued an Interim Order restraining Mahinda Rajapaksa and Forty Eight other respondents from functioning in the offices of Prime Minister, Cabinet Ministers, none Cabinet Ministers and Deputy Ministers respectfully until the final hearing and determination of the Writ of Quo Warranto petition Writ filed by 122 Parliamentarians of diverse parties disputing the holding of offices.

The Bench comprising Justices P. Pathman Surasena (President/CA) and Arjuna Obeysekara also issued notices on the respondents returnable for December 12.

Petlitioners in their writ of Qou Warranto Petition requiring the Respondens to show in what authority they claim to function as Prime Minister and respective offices as Cabinet Ministers and non-Cabinet Ministers and Deputy Ministers.

Before making the order President of the Court Appeal, Prithi Pathman Surasena observed two aspects of the order.

He said when the Court is to make an order on issuing notices to the respondents in Quo Warranto Writ petition, the court is not bound to give reasons for its decision unless the petition is dismissed, yet he said that the Bench decided to set out reasons for their decisions.

He also said that when an Interim Order is granted that decision is not the final determination of the court, and one should bear in the mind that fact when interpreting the order without prejudicing the parties of the case.

Delivering the reasons, Judge Surasena observed that the matter is of national importance and has to be dealt with great care.

He explained that the petitioners, as 122 parliamentarians, have submitted in the petition arguing that they have twice passed  No Confident Motion in Parliament on November 14, 2018 and November 16, 2018 under the provisions of the Constitution.

In view of the fact that the petitioners have twice passed  No Confidence  Motion, Justice Surasena observed that under the Article 48 (2) of the Constitution, when a No Confidence Motion is passed in Parliament against the Prime Minister, the Cabinet of Ministers shall dissolve.

He also elaborated that the interim order is not restraining the functioning of the Prime Minister or Cabinet of Ministers in the Country, ‘but only restraining the respondents as individuals from functioning in those offices’.

He also observed the irremediable damages that could cause from this interim order. First he pointed out that the due to the interim order country may end with no Prime Minister and Cabinet. However, he said allowing the respondents to hold the offices would cause more damage than that of previous.

If these respondents were allow to exercise their functions until the matter is heard , the court is of the view, that considering Prime Ministers and Ministers are exercising very important public functions under the law, therefore, the court is able to see that balance or convenience is in favour of 122 petitioner Parliamentarians. 

K. Kanag Iswaran PC with Ikram Mohammad PC, A.M.Faiz, Viran Corea and Suren Fernando appeared for the Petitioners.

Gamini Marapana PC with Navin Marapana as well as Romesh de Silva PC, Manohara de Silva PC, Sanjeeva Jayawardena PC, Ali Sabry PC and Shaveendra Fernando PC appeared for the respondents.