President Can’t Act like Alice in Wonderland”- Counsel tell SC

Challenging all arguments in favour of the dissolution of Parliament, the Supreme Court (SC) yesterday heard ten petitions arguing that President Maithripala Sirisena must abide by the Constitution when exercising Executive powers, and could not act like “Alice in Wonderland”.

Ten petitioners yesterday informed court that the President’s powers to dissolve parliament under Article 33 (2) (c) of the constitution was not an unfettered power, and was restricted by Article 70 (1). All counsel maintained that Article 33 was an empowering provision, which was subject to procedure. They argued that 33 (A) was clear on the President’s accountability to parliament, adding that therefore the dissolving of parliament was ‘ab initio void’, or “invalid from the outset”, and was both illegal and unconstitutional.

Explaining what was termed as the “absurdity of the argument” that Article 33 (2) (c ) can stand alone, M.A Sumanthiran PC provided the example. “If the power to summon, prorogue or dissolve parliament under 33 (2) (c) was to stand alone, that means the President can prorogue parliament indefinitely. Can he do that? No he cannot because his powers to prorogue are confined by Article 70 (3)”, he said.

The Counsel said the President had cited Article 70 (5) to dissolve parliament, when such powers are in fact derived from Article 70 (1). “The only provision under which the President can dissolve parliament is found in Article 70 (1). There is no other provision in the Constitution that provides for dissolution by proclamation. He has no mandate to dissolve parliament before four-and-a-half years or without a two-thirds majority,” Hejaaz Hizbullah, Counsel for Commissioner of Elections’ Prof. Ratnajeevan Hoole told court. Mr. Hoole is one of the three members of the Elections’ Commission, and he called the President’s actions “illegal and unconstitutional”, first as a respondent and then as a petitioner.

Commencing submissions last afternoon, K. Kanag-Isvaran PC appearing for Opposition Leader R. Sampanthan with M.A Sumanthiran PC and Niran Anketell, explained the nature of the constitution after the 19th Amendment. “Article 62 (2) which states that every Parliament shall continue for five years, and the expiry of the said five years shall operate as a dissolution, is the norm, not the exception. The exception is provided for in 70 (1),” he said. Thereafter pointing out that the proviso in Article 70 (1) was mandatory, he said: “ I don’t think I need to explain myself when the constitution clearly says “shall not” my Lords. It says you can’t. There is no way out,”.

Article 70 (1) of the Constitution reads: “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”.

“The elephant in the room is the missing reference to Article 70 (1) in the proclamation. What it has referred to is 70 (5) which has got nothing to do with the power of dissolution by proclamation. It’s that simple,” Mr. Kanag-Isvaran said.

Responding to Mr. Kanag-Isvaran’s submissions, Hejaaz Hizbullah cited the dicta in the case of Karunathilake v Dayananda Dissanayake justifying his client’s stance that the President’s actions were illegal and unconstitutional, and therefore must be heard.

“My client can’t act with a clear conscience when the very basis of the constitution has been violated by the actions of the President. In fact Your Lordship’s Court has held that the Elections’ Commissioner must not do so,” he said, before going on to read passages of the judgement of the case.

Commencing submissions last afternoon, K. Kanag-Isvaran PC appearing for Opposition Leader R. Sampanthan with M.A Sumanthiran PC and Niran Anketell, explained the nature of the constitution after the 19th Amendment. “Article 62 (2) which states that every Parliament shall continue for five years, and the expiry of the said five years shall operate as a dissolution, is the norm, not the exception. The exception is provided for in 70 (1),” he said. Thereafter pointing out that the proviso in Article 70 (1) was mandatory, he said: “ I don’t think I need to explain myself when the constitution clearly says “shall not” my Lords. It says you can’t. There is no way out,”.

Article 70 (1) of the Constitution reads: “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”.

“The elephant in the room is the missing reference to Article 70 (1) in the proclamation. What it has referred to is 70 (5) which has got nothing to do with the power of dissolution by proclamation. It’s that simple,” Mr. Kanag-Isvaran said.

Responding to Mr. Kanag-Isvaran’s submissions, Hejaaz Hizbullah cited the dicta in the case of Karunathilake v Dayananda Dissanayake justifying his client’s stance that the President’s actions were illegal and unconstitutional, and therefore must be heard.

“My client can’t act with a clear conscience when the very basis of the constitution has been violated by the actions of the President. In fact Your Lordship’s Court has held that the Elections’ Commissioner must not do so,” he said, before going on to read passages of the judgement of the case.

Earlier when the Fundamental Rights application filed by R.Sambanthan was taken up at 12.20 Deputy Solicitor General Sanjay Rajarathnam informed court that the Attorney General had not been served with notices and said he was yet to receive instructions from the Elections Commission who were cited as Respondents.

The Petitioners informed court that their Petitions were filed at 8.30 AM last morning. The fact that the Petitions were filed in the morning and made its way to the Court house in the afternoon was not lost by many, who usually have to wait weeks before a Fundamental Rights petition is listed for hearing.

However, Chief Justice Nalin Perera informed the Mr. Rajarathnam to obtain instructions and be present at 2. PM after which court was adjourned. Thereafter, a team led by the Attorney General Jayantha Jayasuriya PC himself together with Solicitor General Dappula De Livera, Nerin Pulle DSG PC,Indika Demuni De Silva DSG PC Dr. Avanthi Perera SSC and C walked into court a few minutes before 2 PM.

As soon as court resumed Mr. Jayasuriya PC informed the three judge bench, headed by Chief Justice Nalin Perera and Justice Prasanna Jayawardena and Priyantha Jayawardena, the scheduled bench for today in court room 502 that they had to move for time to obtain instructions. The Attorney General said that he was made a party in terms of Article 35 the Constitution which provides for the AG to be made a party ” of anything done or omitted to be done by the President, in his official capacity”

However, the Bench informed the Attorney General that they were inclined to hear the Petitioners following which the Attorney General was permitted to make submissions today. Several Counsel including those representing Prof. G. L Peiris, and Channa Jayasumana, both staunch supporters of former President Mahinda Rajapaksa sought to intervene. The court informed them to follow the procedure in order to intervene. They are scheduled to make submissions today having filed intervening papers.

Throughout the submissions made thereafter, including that of Thilak Marapana PC representing the UNP, Counsel maintained that the President had no power to dissolve parliament without following the procedure laid down in the constitution.

“ We ask for an interim order against the proclamation. Your Lordships would want to know what flows from it and what flows from it is that the status quo ante (the way things were before) remains. If they want they can go to parliament and resolve to dissolve parliament. But nothing can flow from illegality. The proclamation is illegal and nothing can flow from it” Counsel said.

Geoffrey Alagrathnam PC, representing Mano Ganesan quoting from Lord Atkin in the case of Liveridge v Anderson a landmark case in Britain regarding the separation of powers where Lord Atkin Quoted a dialogue between Humpty Dumpty and Alice, said the President cannot be allowed to pick and chose which parts of the Constitution to follow and which to negate.

Harnessing the point further, Hejaaz Hizbullah, representing Rathnajeewan Hoole as Petitioner said if 33 (2) (c ) was to be considered a stand alone provision, that would in effect mean the President having the power to dissolve or prorogue parliament even when an impeachment motion has been submitted to the speaker.

Suren Fernando representing the All Ceylon Muslim Congress went further to highlight the “absurdity of this construction. This was a mala-fide move for a collateral purpose”.

Jayampathy Wickremarathne PC who made submissions quoting widely from the leading text on the interpretation of statutes “ Bindrar on Interpretation “said that there was no mode in which the actions of the President could be legitimized.

Presidents Counsel Ikram Mohomed representing the Muslim Congress also made submissions in support of the arguments put forward by the Counsel. “There is no way this can be cured except by Your Lordships Court. And that is by holding that this move is illegal and unconstitutional” he said.

Counsel J.C. Weliamuna represented the Janatha Vimukthi Peramuna, whilst Viran Corea represented the Centre for Policy Alternatives and Thishya Weragoda civil society activists. All Counsel sided with the submissions of the other.

Having heard submissions till 5 PM the court adjourned. The Attorney General made an application for the hearings to be taken up on Wednesday which was denied. The hearing will commence at 10 AM today in Court 502.

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