The Supreme Court on Friday concluded hearings on some fifteen intervenient petitions filed in connection with the eight Fundamental Rights applications challenging the dissolution of  Parliament and fixing June 20 as the date for the parliamentary polls amid the coronavirus crisis. The proceedings which continued for the ninth consecutive day on Friday saw counsel appearing [...]


SC concludes hearings on 15 intervenient petitions regarding polls


Lawyers appearing in the fundamental rights cases relating to the upcoming polls leaving the court premises. Pic by Priyantha Wickramaarachchi

The Supreme Court on Friday concluded hearings on some fifteen intervenient petitions filed in connection with the eight Fundamental Rights applications challenging the dissolution of  Parliament and fixing June 20 as the date for the parliamentary polls amid the coronavirus crisis.

The proceedings which continued for the ninth consecutive day on Friday saw counsel appearing on behalf of petitioners, respondents and interveninent petitioners being given adequate time by the five-Judge bench to present their submissions.

Having heard the submissions of both parties, the Court is set to hear final concluding remarks by both parties tomorrow. The petitioners’ main counsel M. A. Sumanthairan PC will deliver a summary on behalf of all eight petitioners in response to the arguments made by the respondents.

Representing the Election Commission, counsel Saliya Peiris PC also sought to address court since the Commission came under severe criticism by the intervenient petitioners. One counsel alleged some EC members were working in collusion with the petitioners. Another intervenient petitioner asked the court to direct the EC to conduct polls without delay and to dismiss the petitions.

When the Court was hearing intervening petitions supported by lawyer Chrishmal Warnasuriya, on Friday, the bench intervened to raise concerns of different positions taken by the counsel when representing two different intervenient petitions. The Court was adjourned briefly for 20 minutes before hearings were resumed.

Chief Justice Jayantha Jayasuriya said the Bench had decided not to hear the case any longer until clear written submissions were filed indicating the position taken by the petitioner on the relief he was seeking.

The Supreme Court five-judge-Bench comprised Chief Justice Jayantha Jayasuriya, Justices Buwaneka Aluwihare, Justice Sisira de Abrew, Justice Priyantha Jayawardena and Justice Vijith Malalgoda.

Continuing his submission on Friday, Ali Sabry PC said if the Court was to give direction to summon Parliament by revoking earlier Presidential proclamation, that would give a bad precedent for governance in future.

Mr. Sabry who represented Vice Chancellor of the University of Sri Jayewardenepura, Prof. Sudantha Liyanage told court that since the Opposition had failed to convince the President to declare emergency which would have mandated Parliament to reconvene automatically, it had approached the court to revive it through the judiciary.

Stressing that the President acted according to the Constitution to dissolve Parliament which still stands valid today, he argued there was no need to pass new legislation in Parliament to tackle COVID-19 crisis by reconvening it but existing laws were adequate to bring it under control. This, he claimed the President had achieved.

Drawing an example of how South Korea conducted polls recently amidst fighting the coronavirus pandemic, he said the Election Commission also should begin the process without delay to ensure that the franchise of the people was respected. “The Election Commission is there to hold elections, not to postpone elections. Not having elections in time is very dangerous to a functioning democracy,” he said.

The Bench also requested Additional Solicitor General (ASG) Indika Demuni de Silva to make available certified copies of the Parliamentary Elections Act with Amendments since there were discrepancies among the documents submitted to court.

During the course of submissions made in the Court on Friday, the judges had to remind the counsel to wear face masks while addressing court in keeping with the health regulations.

Representing Intervenient petitioner Muruththettuwe Ananda Thera, President of the Public Service United Nurses Union, Sanjeeva Jayawardena PC told court that at least five of the petitioners are candidates contesting the upcoming Parliamentary polls. He said these candidate-petitioners having taken part in the election process as stakeholders by filing nominations, were now challenging the President’s March 2 proclamation that dissolved Parliament in accordance with Article 70 (1) of the Constitution.

“The call to revive the old Parliament is to achieve micropolitical objectives. These petitioners are trying to retract from that process which would have consequential effects,” Mr. Jayawardena said, adding that the Election Commission had powers to defer the date for the polls once the President issued the proclamation.

The counsel produced a document claiming to be the draft of the Health Ministry guidelines on conducting the polls amidst the COVID-19 crisis, prompting the petitioners’ counsel, M.A. Sumanthairan PC, to raise objections as to why it was being submitted to courts by an intervenient petitioner, instead of the Attorney General who represented the Director General of the Health Services. The bench instructed the AG to verify the authenticity of the document and refer it back to court.

On the President’s powers to access the Consolidate Fund without Parliament’s approval in the absence of an active Parliament for ‘public service’ purposes, a term heavily contested in court by petitioners, Mr. Jayawardena argued that to run the government, the President was empowered to raise or borrow funds for debt servicing purposes and recurrent expenditure.

The court was told Rs 721 billion was sanctioned by the previous Parliament for debt servicing purposes alone and the moves by the new government to increase that limit to Rs 1.008 trillion in February failed since the then Opposition opposed a new Vote on Account to draw funds after April 30.

Gamini Marapana PC, representing intervenient petitioner Atapattukande Ananda Thera of the Malwatte Chapter told court that the people’s franchise would be blatantly violated if the petitioners succeeded to resurrect the old Parliament. He said the petitioners were instrumental in delaying the Provincial Council elections for more than two years citing legislative issues. “If they succeed, this would be the pinnacle of all,” he said.

Claiming that the petitions had been filed with mala fide intention and therefore should be dismissed without giving grant to leave proceed, Mr. Marapana questioned why none of the petitioners, in their effort to justify the reconvening of Parliament, had claimed in their petitions that the Government mishandled the COVID-19 current situation.

“Why should Parliament be summoned when most of the members would not support the President’s efforts to control the current pandemic situation?” Mr. Marapana asked, pointing out that, in contrast, the former Prime Minister stepped down from his post even though his party had a majority in the House in view of the current President receiving a fresh mandate during last Presidential election to implement his policies,

The court was also told of the ‘doctrine of necessity’ – a principle that had been recognized by the Supreme Court of Pakistan following the military’s takeover of the Government in that country in 1955.

Insisting that the peoples’ welfare is the supreme law, Mr. Marapana brought to the attention of the Court that even though summoning and prorogation of the Parliament could be a political decision, the court, which exercises the judicial power of the people, held otherwise in 2018 when the then president dissolved parliament.

Kushan de Alwis PC representing intervenient petitioners Dr. Gunadasa Amarasekara charged that the collateral purpose behind the petitions filed by former opposition parliamentarians and others was to delay the polls.

He alleged that, by delaying the polls for months through resurrecting the old Parliament, the petitioners were trying to capitalise on the economic hardships faced by the people for electoral gains as the country was now facing enormous economic challenges due to the current coronavirus global situation.

Additional Solicitor General Indika Demuni de Silva on Tuesday told court that once Parliament was dissolved it was in the mode of ‘civil death’ in legal terms till a new Parliament was constituted. “Once Parliament ceases, so does the office of the members,” she said.

“How can the President revoke his own proclamation dissolution of Parliament? There is no Constitutional provision which enables that,” ASG de Silva said, while pointing out that the petitioners had failed to establish a prima facie case based on the relief sought by them.

On summoning Parliament under special circumstances, the ASG told court that under Article 155 section (1) of the Constitution, President ‘may’ summon Parliament but not ‘shall’ as petitioners interpreted while indicating that it applied only if the President was convinced of the need to summon the House. “Even the Supreme Court cannot give direction for Parliament to be summoned,” ASG de Silva stressed.

Countering petitioners’ argument that Parliament had to be convened to enact necessary laws with regard to contain the COVID-19 situation, the ASG said that existing laws were enough to deal with the crisis. She said the Election Commission in consultation with the Health Ministry was empowered to introduce necessary regulations with regard to social distancing and election campaigning methods during the pandemic.

“It is not the job of the Supreme Court to get into the shoes of the President to decide whether Parliament should be convened or not,” Ms. de Silva said.

A confidential report compiled by the State Intelligence Service (SIS) on the current COVID-19 situation and how the government was effectively tackling the crisis was submitted to the bench by ASG.  When the bench asked whether the petitioners had been given a copy of the report, the ASG said they would be given access to the document for perusal in court.

In her concluding remarks, ASG de Silva informed court that although the dates specified in the March 2 Presidential proclamation for the convening of the new parliament had passed the mandatory three month period per Article 75 of the Constitution, the proclamation was still valid, lawful and legally operational.

ASG de Silva submitted to court that the petitioners had come before court relying heavily on supervening events and unforeseen circumstances to claim that their fundamental rights were violated. “It’s a fallacy. There is no error in law on the election process,” he said.

It was also submitted to court by the ASG de Silva that the President was required to attend Parliament at least once in three months while Parliament is in sessions, not dissolved as argued by the petitioners.

On Tuesday, Manohara de Silva PC representing Prof. Pandula Endagama alleged that the ‘so-called independent Election Commission’ was not independent as it claimed to be with three different counsel are representing members of the Commission.

Citing a media report which quoted a member of the Election Commission as saying that the EC was waiting for the determination of the Supreme Court for its next step on the conduct of the polls, the counsel asked why the Commission could not continue the election process as in terms of its mandate.

He also pointed out that the various election-related activities such as issuing poling cards, preferential numbers and symbols, by the Commission were also put on hold awaiting the court’s determination.

Uditha Egalahewa PC representing petitioner J. Thiyakarajah told court that none of the petitioners sought any interim relief but sought only leave to proceed for the sole purpose of delaying the polls. He alleged all the petitions are frivolous and mala fide in nature and therefore they should be dismissed.

EC’s counsel Choksy calls for the dismissal of petitions
Three counsel represent the Election Commission (EC) in the Fundamental Rights (FR) cases filed by eight petitioners challenging the dissolution of Parliament and the fixing of June 20 as the date for the Parliamentary polls.

One of them is V.K. Choksy PC. He told court that petitions had been filed with an ulterior political motive and therefore they should be dismissed and the Election Commission should be given the discretion to decide the date of the poll.

Representing the EC in five FR petitions, he said rescinding the March 2 presidential proclamation dissolving parliament and the Gazette was an action that came within the President’s discretionary powers.

“It is a discretionary power vested in him by the Constitution. Any action to supersede that would result in the violation of our Constitution,” he said while urging that this should certainly not be done by the court.

In the five FR petitions, he appeared on behalf of Election Commission Chairman Mahinda Deshapriya, Commission member Nalin Abeysekere PC and Commissioner General Saman Rathnayaka.

Saliya Peiris represented the EC in other three petitions while EC member Ratnajeevan Hoole, was represented by Astika Devendra.

Countering the petitioners’ argument on the legality of accepted nominations on March 16, 17, 18 and 19 which were declared as ‘Special Public holidays’, Mr Choksy brought to the attention of court that March 16 did not fall within the First Schedule of the Holidays Act No: 29 of 1971 or a Sunday or a Poya day as the law indicated. Therefore, he argued that even if it was a public holiday, it still did not vitiate the nominations thus being accepted on those days.

With regard to the issue raised by the petitioners that the present pandemic did not permit parties and or candidates to canvass and or hold meetings ahead of polls, Mr Chocksy said it was not a necessary part of a free and fair election by pointing out that candidates in the recent past had carried out election propaganda activities through different modes such as electronic media and the social media.

Countering arguments placed before court comparing similarities between Sri Lanka’s and the United Kingdom’s Parliament, Mr Chocksy said, “Our Constitution does not provide for Parliament to have perpetual life.”  He pointed out that our Constitution was an Executive Presidential Constitution where the President had very much more power than the UK’s head of State, the Queen.

On the question that Parliament has to meet because that mandatory three-month period has lapsed, the court was told that it was an unfettered discretion of the President to reconvene Parliament and that too in limited circumstances such as emergencies, which, in this instance, did not exist.

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