Validity of Gazette proclamation : Issue outside court’s jurisdiction, says AG | Sunday Observer

Validity of Gazette proclamation : Issue outside court’s jurisdiction, says AG

9 December, 2018

For the past four days, lawyers and seven judges of the Supreme Court were engaged in a legal tussle for and against the validity of the gazette proclamation made by President Maithripala Sirisena.

The Petition was heard before the seven-judge Bench consisting of Chief Justice Nalin Perera and Justices Prasanna Jayawardena, Buaneka Aluwihare, Vijith Malalgoda, Priyantha Jayawardena, Sisra de Abrew and Murdu Fernando.

Court room 502 was packed as usual with lawyers and politicians. The room echoed with heavy arguments that identified core values and ideologies on which the Constitution was drafted.

Arguments by the petitioners and the Attorney General commenced on the second day and continued to the next day. The Attorney General (AG), in his submission which took nearly five hours, went into depths of his arguments.

Attorney General Jayantha Jayasuriya, President’s Counsel, making submissions on the instructions of the parties he represents took up the position that this issue completely falls outside the ambit of the court’s jurisdiction. Referring to Articles 126 and 118 of the Constitution, he said that the Constitution provides the framework to challenge the issue before court, stating that an intentional violation of the Constitution by the President must be challenged via an impeachment as provided under Art.38(2).

He said the role of the Supreme Court is to only inquire into such violation when referred to them by the Speaker during the impeachment process. If a citizen is to invoke his rights against an action by the President, it should be through his representatives in Parliament and by way of an impeachment, Jayasuriya said.

“Court could not fill a gap in the law left by Parliament,” he said.

He said that the change that was introduced by the 19th Amendment was, the need for a simple majority in the event of a dissolution prior to four and half a years.

“They have tied their own hands, as prior to the 19A, Parliament could have dissolved itself with a simple majority,” he said.

Explaining the necessity of presidential immunity, the AG said that actions which are open for judicial review are administrative and executive functions, and that acts by the President do not fall into the said category.

He refuted the submission by petitioners that every act, except for the power to declare war and peace (under Article 33(2)(g)), was justiciable.

His opinion was that an appeal to the people to exercise their franchise enhances the sovereignty of the people, and that in the event the dissolution is declared ultra vires, the sovereignty of the people would be denied.

President’s Counsel Sanjeewa Jayawardena, making submissions on behalf of his client, Prof. G L Peiris, elaborated on the difference of the English and the Sinhala versions of the Constitution, especially, the Articles that were contended through the action. He said there are three kinds of dissolution: at the expiration of four and a half years of the term (Article 62(2)), where Parliament passes, by a two-thirds majority, a resolution for its dissolution and where the President dissolves under Article 62 (2).

He said his client’s views expressed in his speeches in Parliament are irrelevant and are not estopped by law.

Manohara de Silva representing MP Udaya Gammanpila said Articles 33, 62(2) and 70 contradict each other. It is the court that has to make sense of it, he said.

Deviating from legal arguments, he said the challenge of the dissolution appears to be the work of foreign forces waiting for the country to become a failed state, so they can intervene. It can even be an act of terrorism, he said.

President’s Counsel Ali Sabry said the court doesn’t have jurisdiction to hear the matter, adding that a dissolution is the only way to come out from this political crisis.

“Sri Lanka does not have a Westminster system of Government, and, therefore, the Prime Minister doesn’t have to command the majority of Parliament. He is just another member of the Cabinet,” Chrishmal Warnasuriya submitted to court appearing on behalf of a petitioner.

He said that the petitioners have not been able to establish how their rights have been violated by giving them the right to franchise.

In its final day on Friday, the petitioners commenced their counter arguments against the point made by the petitioners.

President’s Counsel Kanag Ishwaran said Article 38(2) provides for specific mechanism to take on the intentional violation of the Constitution and that it cannot be considered as an ouster clause.

“The Court’s jurisdiction to grant relief on an infringement by an Executive order cannot be ousted ex facie and that an ouster cannot be validly ascertained by the provisions in the Constitution,” he said. This is something that has been dealt in our courts system. Courts dislike attempts to ouster or curtail its jurisdiction,” he said.

He said that whenever the Constitution has made reference to an ouster clause, it is clearly said so to be easily ascertained.

President’s Counsel M. A. Sumanthiran told court the importance of looking at the source of a law. He said that most of the phrases in the Constitution are taken from international covenants, and that if the Sinhala or the Tamil version is to be given effect, the idea may be lost.

Citing an example, he said that the phrase “unless sooner dissolved” is a phrase adopted in all countries with a Parliamentary system.

In reply to a question by the Bench regarding Article 18 which says that Sinhala is the official language, Sumanthiran said that there is a distinction between the official language and the language of legislation and that they are two different things.

Appearing on behalf of the JVP, President’s Counsel JC Weliamuna questioned that if relief is given, will the people be denied of franchise. Saying that his clients have held the opinion that a General Election should be called, however, said that it should be done in a lawful manner. He said this can be further ascertained by the fact that the Election Commission has not filed any objection to the petitions.

Appearing on behalf of MP Rauff Hakeem, President’s Counsel Ikram Mohomad with Milhan Mohomad brought to the attention of the court a book authored by Manohara de Silva (PC), in which he has stated that the President is not empowered to dissolve Parliament prior to the four-and-a half years of its term. To which the Bench replied that any person is entitled to change their opinion.

Hijaz Hisbulla, appearing for the petitioner, a member of the Election Commission, Prof. Rathnajeevan Hoole said the Constitutions is an instrument that should be read as a whole and not in peacemeal.

Drawing a parallel with ‘ connect the dots exercise’ that her daughter does on a daily basis, he said that it is simply what we are supposed to do. To connect the dots in the Constitution and to connect all the dots in the manner it should be done.

Expressing his gratitude to the Bench for listening to the submissions of the Counsel, he said that whatever the outcome of this will be, the judicial process has won.

“Many countries face deadlocks. Opposing ideologies come to understandings for the benefit of the country. Sitting here for the past three days, we learned to come to agreements. Opposing counsel are today taking turns to sit and share seats with one other,” he said.


Lawyer Premnath C. Dolawatte

The Court usually sets a date to give the ruling, in any ordinary case. But today the court adjourned without setting a date for the ruling. In a landmark case like this, the judgement cannot be hurried, that is my view. They will dwell into every detail in the four days submissions and counter arguments before reaching a …. We cannot force the Bench to give a hurried ruling. What is happening today is not extraordinary.

The case consumed a lot of energy and time of the seven Judges. On the fourth and the last day of the Supreme Court hearing on Friday, the court was adjourned at 7.00pm. We finally hope that the Bench will uphold the people’s right to elect their representatives without dragging this further. I hope the judgment will reflect and embody people’s aspirations to go for elections.

We cannot set out a date. It is a unique case. We believe they will do their best within their parameters.

M. A. Sumanthiran, PC

The instability will continue until the President appoints a new Prime Minister. Mahinda Rajapaksa is not the Prime Minister any more. In the Quo warranto court case, the interim order was given that on November 14, a confidence motion was passed against Mahinda Rajapaksa.

We haven’t taken a decision on the motion forwarded by the UNP to reinstate Ranil Wickremesinghe as the Prime Minister. We haven’t also decided on whether we accept him as Prime Minister or not.

UNP MP Ajith P. Perera

The judgement was postponed without a date. Until the decision is announced, the interim order of suspension is valid. We are continuing our struggle for democracy. We believe that we would receive support from the justice system.

We have now reached a significant juncture. We have faith that we can resolve this through the judiciary, on behalf of the people.

The entire chaos was triggered by the President. Therefor, the Legislature or the Judiciary or the public have limited choices. The Judiciary is proceeding in an impartial way.

Now, we have submitted a motion to display that Parliamentary majority is with Ranil Wickremesinghe. It will be entertained on November 12. Till then, the President has an opportunity to reappoint Wickremesinghe as the Prime Minister and establish the status quo prior to October 26.

We are going to name no other MP from our party to the Premiership other than Wickremesinghe. The President can’t select the leader of our party since he is not the leader of the UNP. We will select the one we want.

The President was elected with UNP votes, we have given him a chance to perform as the President according to the Constitution.

The majority of Parliament as well as the public request Wickremesinghe as the Prime Minister. - RJ & AV