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Sri Lanka: Petition against President --- Court adjourned till tomorrow

Act of Dissolution is void ab initio. Therefore anything that arises out of it is illegal - argued






( November 12, 2018, Colombo, Sri Lanka Guardian) The Super Court proceedings on the dissolution of the Parliament by the President Miathripala Sirisena has adjourned till 10 AM tomorrow.

Here is the brief roundup of the proceedings;

Fundamental Rights Petitions on the dissolution of the parliament being taken up by the court in the afternoon around 14.00 in Colombo time. Attorney General department says that notice has not yet been served on all parties. President’s Counsel K. Kanag-Isvaran asked the court to take this matter up today due to grave urgency for the country.

The bench consisting of Cheif Justice Nalin Jayalath Perera, Justice Priyantha Jayawardena, and Justice Prasanna Jayawardene were taken the matter up. Several senior counsels make their submissions.

Presidents Counsel K. Kanag-Isvaran commences his submissions in SCFR 351/18 for Leader of Opposition of the Parliament R. Sampanthan. He states that a proclamation cannot be made under Art. 70(5). It is only a consequential provision. Has to be under 70(1) which President has not done.

He further explained that Article 33(2)(c) is only an empowerment and not a standalone provision. There are other provisions in the Constitution that legitimately influence its meaning and ambit and they need to be followed.
Counsel Hejaz Hizbullah for 4th Respondent in the same case (Prof. S. R. Hoole - a member of Election Commission) says that it is his duty as a member of the EC to uphold the law. Legal precedent requires him to seek legal recourse. He says the proclamation is ex facie bad in law.

Former Attorney General Tilak Marapana commenced submissions in SCFR 352/18. He says that EVEN IF 33(2) was a standalone provision; the act of dissolution has to be done reasonably and not for a collateral purpose as the President Maithripala Sirisena has done since the 26th October.

Meanwhile, Counsel Viran Corea commences submissions in SCFR 353/18 for Centre of Policy Alternatives and P. Saravanamuttu. He says that the Right to Franchise of Voters of SriLanka are affected by this act, and asks for a stay order against the proclamation.

Dr. Jayampathy Wickremaratne PC in SCFR 354/18 explains the rules of Constitutional Interpretation. He asserted we must look at the intention of the framers of the law, and interpret the law harmoniously. Should not interpret 33(2)(c) in a way that conflicts with 70(1).

Mr Sumanthiran PC also points out that if 33(2)(c) was a standalone provision the President could prorogue parliament indefinitely without abiding by the limitations in Article 70. He explains how reading 33(2)(c) this way could lead to major abuse of power.

Counsel M A Sumanthiran in SCFR 355/18 explains the separation of power; under our Constitution, each organ of government is supreme in its own sphere. There are checks and balances between them, but one cannot extinguish the other in this manner.

He says that the act of Dissolution is void ab initio. Therefore anything that arises out of it, such as the General Election in the Proclamation is illegal.

After short adjournment court takes up SCFR 356/18. Mr. JC Weliamuna PC states that the 19th Amendment increased the powers of Parliament, which has a direct mandate of the people. He reminds that Lawyers take an oath to defend the Constitution at a time when the sun is setting on it.

Mr Weliamua also says that the position isn't that Parliament cannot be dissolved before its term. It can, but the procedure needs to be followed, i.e. reconvening Parliament and getting the approval of 2/3 of members.
Presidents Counsel G. Alagaratnam in SCFR 358/18 says an Article of the Constitution cannot be read in isolation or in a manner that creates an absurdity. This would be the case if the President can dissolve Parliament the day after it is elected.

He also points out the impact that this act of the President has had on the Sri Lankan economy and the country as a whole.

Mr. Suren Fernando in SCFR 359/18 explains that Article 70(7) re calling a dissolved Parliament in an emergency only applies if there is a valid dissolution. Without such dissolution, Parliament can reconvene.

President’s Counsel Ikram Mohamed appearing for Rauff Hakeem and others in SCFR 360/18 reminds the court of Article 33(1)(a) which says the President is duty bound to ensure that the Constitution is respected and upheld.
Much awaited Petition (SCFR 361/18) of Member of Elections Commission Prof. Hoole taken up. Counsel Hejaaz Hizbullah asks how Article 70(5) mentioned in Proclamation can stand alone in disregard of 70(1).

He also says that the right to Franchise isn't only about holding elections but also respecting the choices of the people made in elections. He asks for a stay order pending the final determination of this case because of the large cost of Elections.

Court adjourned till 10 AM tomorrow (13th Nov).

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