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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2430

Sri Lanka court starts hearing Parliament dissolution petition

Colombo, 04 December, (Asiantribune.com):

A bench of 7 justices presided by Chief Justice began hearing the FR applications filed challenging Gazette on dissolution of Parliament.

On 13 November the SC issued interim relief staying the operation of this Gazette -No 2096/70 of 2018- giving a boost to deposed PM Wickremesinghe’s camp.

Today’s hearings opened with K Kanag-Isvaran PC saying that Affidavit filed by Secretary to the President states that Article 70(3)(ii) is one of the provisions that gives Dissolution Proclamation legality. But this cannot be a stand-alone provision allowing deviation from 70(1). He said that the Constitution is like a garland of pearls. One cannot pick one Article & ignore the others. The Constitution should be treated as a whole.

Commencing his submissions Former AG Tilak Marapana PC said that the only matter to be decided in this case is whether proviso to Article 70(1) can be disregarded when dissolving Parliament. He further says an empowering provision like Art. 33(2)(c) is akin to giving a person a license to drive. However, there are other rules that govern how it is done, like traffic rules.

These have to be followed. He says that the Affidavit filed by the Secretary to President is no substitute for one from the President himself. Only President can give an Affidavit on his state of mind; i.e. his mala fide intentions.

He also states that unlike in UK, Sri Lanka does not have a monarch and the President is a creation of the Constitution and he is bound by the limitations imposed by it.

Counsel Viran Corea commencing his submissions said that there are merits in a fixed four-and-a-half-year term of Parliament. The implementation of policies, holding President accountable, and the continued functions of the Constitutional Council without interference are some such reasons. He also says that people exercise their Constitutionally guaranteed franchise in two ways, voting in Parliament and the President. They are of equal importance and neither supersedes the other.

Dr Jayampathy Wickremartne PC reaffirms that if 33(2)(C) was a stand-alone provision, under it Parliament could be prorogued for far longer period than Article 70 permits. This could lead to serious mischief.

M.A Sumanthiran PC said the Court of the mandate on which President Sirisena was voted into power and the promises he made through his manifesto. The 19th Amendment strengthened the check Parliament and Judiciary have on the Executive. He quoted judgement by Sarath N Silva (Singarasa v AG) where he said no organ of government has plenary power that supersedes the Constitution. The President is not the repository of plenary executive power and this is not only violence against the Constitution but also our Democracy and our status as a Republic. Page containing Article 70 may as well be torn out of the Constitution. J C Weliamuna PC quoted an interview with President Sirisena published in The Hindu newspaper where he says that as per the 19A he cannot dissolve Parliament until 4 1/2 years has passed. Presidents Counsel Mr Alagaratnam said that a person cannot unlawfully and unconstitutionally manipulate the situation to call for elections. This would not be a genuine election.

Counsel Mr Suren Fernando says that when the Legislature wants a provision of law divorced from others it uses the word “notwithstanding.” This is not the language used in Article 33(2). He further questions how persons like the President Sirisena, MP Rajapaksa and Prof G.L Peiris who were once so certain that Parliament could not be dissolved for 4 1/2 years as reported in the media are now taking a contrary position.

President's Counsel Ikram Mohamed stated that President does not have multiplicity or laws to dissolve the Parliament. The manner in which Parliament should be dissolved is contained in Article 70 (1) of the Constitution.
Counsel Hejaaz Hizbullah commencing his submissions states that when something is illegal and undermines the Constitution, reasons justifying it should never be accepted by the Court. He further says that people’s sovereignty means their choices at elections must be respected. it would be the end of Democracy if organs of Government cannot sort out their differences.

Arguments of Petitioners concluded on 4 December. The Case will resume 5th and 6th December.

- Asian Tribune -

Sri Lanka court starts hearing Parliament dissolution petition
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