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Sumanthiran tells the Supreme Court – “A country without Parliament is not a democracy”

ECONOMYNEXT – Hearings into the Fundamental Rights applications challenging the date of the elections and President Gotabaya Rajapaksa’s refusal to reconvene Parliament will continue before the Supreme Court tomorrow.

The hearings before a five-judge bench headed by Chief Justice Jayantha Jayasuriya are aimed at deciding whether the court will grant leave to proceed for the eight FR petitions and a number of intervening petitions.

Supreme Court Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena and Vijith K Malalgoda comprise the bench that is chaired by Chief Justice Jayasuriya.

Raising preliminary objections on the petitions filed, Additional Solicitor General Indika De Silva noted that the petitions could not proceed because it did not meet the time-bar for FR petitions.

The ASG also objected to the fact that while the functions of the president were being referenced, in one of the petitions, the petitioners had failed to cite the President as a respondent. Further submissions on the objections will be raised later during proceedings, she said.

Appearing for petitioners Charitha Guneratne and Victor Ivan, President’s Counsel M A Sumanthiran argued that a Parliament has to be recalled if it is not in session for more than three months, according to the Westminster tradition.

Government, he told the court, consists of the Executive, the Legislature and the Judiciary.

“These three organs are like three legs of a tripod. If one falls the whole thing will collapse” Sumanthiran argued. “A country without Parliament is not a democracy,” he said.

He said that the legislature is a “continuing institution”, and cites Blackstone’s Law of England and the Indian Constitution in support of his contention saying “Parliament never goes out of existence”; “you can never annihilate the Parliament during dissolution it goes on sleep mode.”

The senior lawyer submitted to the court that the President’s proclamation dissolving parliament was ab initio void because his power to dissolve Parliament prematurely has a clear qualifier attached that Parliament must meet within three months of dissolution.

Sumanthiran reiterated the SC judgment in the 2018 Dissolution case and states that the President does not have untrammelled plenary power. A 7-Judge Bench of the Supreme Court has held that the President’s powers are subject to and curtailed by the constitution.

The dates of the election and the convening of parliament are also included in the proclamation and those dates are no longer fulfilled.

Sumanthiran went on to state that the June 20th election could in any event not be held now as several legal stipulations could not be met by that date.

The Parliamentary Elections Act requires at least five weeks of campaigning to be granted before polling date.

Sumanthiran submitted that “franchise is important, but it is the franchise of citizens, and therefore the citizens are far more important than the franchise.”

Sumanthiran listed the challenges in conducting elections under the present pandemic situation. He further stated elections must be held but sufficient laws must be enacted to conduct elections under the present pandemic conditions.

He further submitted that changes must be made by the bodies which are empowered to make those changes, and suggests that it is the Parliament’s power to legislate which SC has “jealously guarded.”

“What has to be done by legislature must be done by legislature not the executive like the curfew being declared by the Presidential media division’s press release,” he said. (Colombo, May 18, 2020)