In an interview with the Sunday Observer, President’s Counsel Ali Sabry said, the verdict of the Supreme Court (SC) on parliamentary elections and dissolution of Parliament is clear and, therefore, the Election Commission (EC) should complete the task by holding elections as soon as possible.
“Four of the five judges except the Chief Justice, were part of the Bench which ruled the dissolution of Parliament in December 2018 by President Maithripala Sirisena null and void,” he said dismissing attempts by counsel for petitioners M.A.Sumanthiran to cast doubts saying that the SC must give reasons for their decision. Sabry said giving reasons is not always the norm in a preliminary hearing in the SC.
Q: How do you view the Supreme Court verdict on the election petitions in the present context?
It was expected. The verdict has been announced in terms of the Constitution. If anyone closely studied and examined the constitutional provisions they would know this decision was inevitable. I’m glad that ultimately, all these speculations and debates have been settled. The Constitution has been upheld by the Supreme Court.
Q: The counsel appearing for the petitioners Sumanthiran said the Supreme Court did not give any reasons for its decision to dismiss the election petitions. Your comments ?
That is nothing new. I am surprised as to why Sumanthiran chose those words because in all ‘leave to proceed’ matters in the Supreme Court, there are two stages. After considering the submissions by all parties, the Court decides whether to grant ‘leave to proceed’ or not at the preliminary hearing. If you decide to proceed with it, there will be a comprehensive hearing where a written judgment is released on the ruling.
At the preliminary hearing, generally reasons are not given. That is how it happens in the SC. Therefore there is nothing unusual about it. Of course there have been times where the Court chose to give reasons.
Q: Although the SC rejected the petitions and upheld the Gazette dissolving Parliament, it seems unintentionally, the demand of the Opposition to postpone the election has been granted. The EC notified the court that it needs 9-12 weeks to hold the election from the day it is given clearance. Will the election be postponed beyond August?
That is a matter for the Election Commission.
Though the SC upheld that the old parliament cannot be re-convened, as a party – a group of individuals and professionals - want a functioning parliament to be there. That is how Governments run. The three arms, the Executive, Legislature and the Judiciary must be in place.
Therefore, holding the election as soon as possible is very important. In terms of the law, the minimum period to be given for a new poll date is two weeks. This fact and the health requirement need to be taken into consideration. I hope the EC will hold the election as soon as possible and complete the task.
Q: The legal impediments have been cleared and it’s in the EC’s court now?
Yes. Whatever the significant and salient arguments, the petitioners brought forward, represented by President’s Counsel Sumanthiran, to prove the decision by the President to dissolve Parliament by proclamation and hold elections was wrong and, therefore, Court must rule it null and void, has been rejected.
The second argument was if the election cannot be held within three months, the proclamation by the President becomes void and a new proclamation has to be made. Therefore, the EC cannot act on the old proclamation. That has also been rejected by the Court. Now the EC can go ahead and hold the parliamentary election.
The third argument was that the old parliament can be re-convened and it has to function. That too was rejected. The fourth argument was that the President did not have the power to deal with public finance, which was also dismissed. Therefore, now, on the face of it, there is a clear finding on the part of the Supreme Court that so far whatever the President has done, in dissolving Parliament and calling for general elections and handling public funds are not unlawful. In other words, it is lawful.
Q: How important is it to have a full Bench of five judges to consider these petitions?
It has been a practice adopted by the Supreme Court to always convene the most senior judges to consider cases which involve the Constitution. Four of the five judges, except the Chief Justice, were part of the Bench which ruled the dissolution of Parliament in December 2018 by President Maithripala Sirisena null and void. There was a debatable point, in 2018, since it was dissolved prior to the constitutionally permitted four and a half years. This time the President has done it in keeping with the constitutional requirement. This is where the petitioners got it wrong.
Q: Do you think there is an erosion of confidence among the Muslim community in the Government especially after the cremation of bodies of those who succumb to the Covid-19 pandemic? As a community leader how do you address this issue?
That is a long term strategy. I must say the Muslim community is a little disturbed and perturbed by the cremation. If I don’t say that I’m a hypocrite because that is something our community feels they cannot accept. But in the meantime, if that is done for medical and scientific reasons, I think the entirety of the community must abide by the law of the land.
But there has been a communication gap, I didn’t find a proper explanation as to why the Government resorted to that measure to dispose the Covid-19 affected bodies. So this debate is still going on. I must tell the Muslim community that this has nothing to do with politics. That decision has been taken by some of the top professionals who are involved in combatting the pandemic.
Winning back their confidence immediately will be a challenge, I must accept that. Once the overall strategy of the Government is implemented and the results are there for everybody to see, in an inclusive kind of governance, the community will probably get back to the fold. As of today it remains a challenge.
Q: A person who has been in the forefront of President Rajapaksa’s election campaign last November, do you fear the Covid-19 has slowed down if not applied brakes in implementing his strategy for the future?
Yeah I think he had to face two challenges. The President is someone who is eternally in action. He doesn’t believe in mere talk. He wants to get things moving quickly. Unfortunately according to the Sri Lankan Constitution, the Executive cannot dissolve Parliament immediately after election. As a result, though the President was elected in November, he could not get his team in place. Then when Parliament was about to be dissolved and elections were to be held, the health crisis erupted.
His hands were tied and he could not get the required laws passed in Parliament to get into action because he did not have the majority support.
And then came the pandemic, the silver lining is that fortunately for the country, Parliament was dissolved by that time. There would have been a major calamity if the old parliament was sitting when the outbreak happened.
Because the President was at the helm and directed with a clear vision and garnered support from professionals in all sectors, from doctors to military intelligence and experts in economy, he managed the situation well. This is a global pandemic and the whole world is suffering.
We were fortunate to have someone like President Rajapaksa to lead the country in this difficult phase. I’m also sure this has given him an opportunity to start afresh by the end of the year to implement his manifesto, ‘the Saubhagye Dekma’. If we manage it properly, he will have a lot of opportunities.
Q: That will be less one-year of his five-year term, will he have enough time to implement his ‘Vision for SL’ in its entirety?
I think so, he has four more years to go. If you go back to 2005/6, many believed that the LTTE cannot be militarily defeated. Between two years, one of the world’s most ruthless terrorist organisations was squashed by the government forces. With a proper vision, a good team and dedication and commitment towards the task, it is possible. I honestly believe he can do. If professionals can support him and the country also can align with his vision, he can transform this country.
Q: The Opposition claims that there will be dictatorship under President Rajapaksa. Since recently he has been appointing retired officers of the Tri Forces to head crucial state agencies, don’t you think this might give credit to the Opposition allegations?
Presidents have appointed retired military people to Government positions from time to time. Once you retire you are no longer in the military. We must also understand, in Sri Lanka there is a dearth of talent, particularly in the public sector.
The President explained recently that for someone to become a major general in the military, he has to have so much of discipline, leadership skills, training and overall exposure. The State has invested in them a lot and they are power-packed. That should not go waste.
But this dictatorship allegation is totally unfair because, what has he done to deserve that title? He has always acted in terms of the Constitution.
If he was a dictator he will want to postpone the election. But on the contrary he wants to hold the election soon and see that Parliament is reconvened early. So far he has acted with respect to the judiciary, rule of law and separation of power.
We must understand that he comes from a family with generations of democratic ideals. All of them have been elected by the people. They are part of the democracy. This claim comes from the same Opposition who in 2010 fielded a candidate straight from the military with zero experience in politics. That was good for them. And the TNA also supported him.
I call it finding different slogans to attack their political opponent. We must judge him by his actions.