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Counsel Corea – “President and the Cabinet are constitutionally responsible to the Parliament”

ECONOMYNEXT – Holding Parliamentary General Elections at this time when the COVID 19 pandemic is claiming victims is dangerous and “queues will stretch for kilometres,” at polling stations, the Supreme Court heard today.

The Apex Court is hearing eight Fundamental Rights applications challenging the Election Commission’s decision to hold the polls on June 20 and the refusal by President Gotabaya Rajapaksa to reconvene the recently dissolved Eighth Parliament.

These hearings are to decide whether the court will proceed with the petitions.

A five-member bench headed by Chief Justice Jayantha Jayasuriya comprising Supreme Court Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena and Vijith K Malalgoda has been constituted for these hearings.

Counsel Viran Corea appearing for Petitioners the Centre for Policy Alternatives and its Executive Director Dr Paikiasothy Saravanamuttu says the Petitioners have come before the SC to “protect the people’s right to franchise and their sovereignty.”

Corea says “free and fair elections must be safe, and health experts have suggested that under the prevailing conditions holding an election is not safe.”

Until a new Parliament can be elected, “the functions of the Parliament must continue” because the President and the Cabinet are constitutionally responsible to the Parliament,  Corea submitted.

Because Parliament has full control of public finance, he said, in terms of the constitution the functioning of the Parliament cannot be dispensed with, he submitted.

Corea, referring to the 2018 dissolution case, submitted that there is no special power vested on the President to dissolve Parliament except the power subject to the restrictions stipulated in Article 70, and that it should be understood in a way that the discretion to call for an early election is subject to the condition that a new date is set to summon a new Parliament within 3 months.

Corea told the court “the framers of the constitution has taken great pains to emphasise that a new Parliament must meet within 3 months.”

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He submitted that the Dissolution proclamation, ever since it became clear that the new Parliament cannot be summoned on the stipulated date, has become invalid.

“There is imminent danger unless the impugned proclamation is held void, otherwise a dangerous precedent will be set where a vital organ of Government will not be for the first time not function for over the stipulated maximum of three months’ period,” he counsel said.

Another counsel, Suren Fernando appearing for two sets of Petitioners including Ranjith Madduma Bandara, General Secretary of the Opposition Samagi Jana Balavegaya submitted that the election commission has two responsibilities. “One is to have a timely election, and two is to have a free and fair, and secret ballot.”

Fernando says that “in any functioning democracy all three organs of Government must exist,” and emphasized about the importance of the separation of powers.

Fernando submitted to the court that the constitution makes the President responsible to the Parliament and he must attend Parliament once in 3 months, and asked if Parliament stands dissolved for over 3 months how can the President attend the Parliament.

He described the current situation as being far more serious than the situation than what the country faced during the 2018 dissolution.

He submits that, the election was not held on the time stipulated in the proclamation, and the new Parliament did not meet on the stipulated date, hence the proclamation is unworkable, and is frustrated.

He said that the “citizens have a right to have a functioning Parliament. If not for the early dissolution invoked by the President, this Parliament would continue until September.”

Fernando told the court that dissolution, in our constitution, is not termination or a “permanent killing of Parliament until a new Parliament is elected. If it is construed otherwise, it will render other provisions in the constitution meaningless.”

He submitted that dissolution of Parliament is not like the dissolution of marriage or dissolution of a partnership as the Constitution enables the President to summon a dissolved Parliament. “You can’t summon a dead Parliament. Hence, dissolution doesn’t mean the Parliament is dead,” Fernando said.

Fernando pointed out that it “imposes a duty on the President to respect and uphold the constitution. This is a situation where the constitution is not respected and upheld. One organ of the Government is not functioning.”

He submitted that the President had a duty to rescind his proclamation adding that that “when you have the power you must not abuse it, but also in necessary situations you must use it.”

He said the President has no control over sources and oversight of public finances. In the circumstances, the President’s powers are limited to the allocation of public finances to public service.

He submitted that the debt ceiling is very important and is set by our by Parliament. Any borrowing that has happened after April 30 is illegal as Parliament has not sanctioned them.

He said the concerns pertaining to public finances emphasise the importance of a functioning Parliament. “Otherwise we will be going into a dangerous situation where we will cease to be a democracy,” counsel said.

Geoffrey Alagaratnam President’s Counsel appearing for two citizens of Sri Lanka quoted the famous saying the “King is dead long live the kingdom” and emphasised the importance of the continuance of Parliament.

He submitted that, the power of dissolution is not an open-ended power and that the constitution reflects the social contract between the sovereign people and the rulers who hold and exercise that sovereign power in trust of the people.

Alagaratnam said “we don’t have an election by hook or crook. It must be free and fair.”

He said the Executive has stated that “under no circumstances, I would reconvene the Parliament. Is it responsible for an Executive to say so?”

Ikram Mohammed PC appearing for Petitioner Sri Lanka Muslim Council leader Rauff Hakeem says that the dissolution proclamation has ceased to be valid; it is inoperative; and cannot be carried forward.

Counsel said “if elections were held queues can extend to more than a kilometre. Is it practical to have an election now, can we all stand in such queues? Can social distancing be maintained at an election?”

He said that “even today we are not free, therefore a free and fair election cannot be held. It is not realistically possible.”

The President, Mohammed said, could have obtained an opinion from the SC, but he has not done that, and that is why these actions had to be filed.

He said the “SC is the final guardian of Fundamental Rights, there is no other place to go. It is a solemn and sacred duty of the SC.”

He submitted that the President is also subject to the rule of law; he is a creature of the constitution, and he is not above the law.

Submissions with resume tomorrow. (Colombo, May 19, 2020)

We acknowledge online sources primarily the Tweets from N K Ashok Bharan and PublicLaw for the content above as well as our court reporters.

Reported by Arjuna Ranawana