ARE JUDGES NEXT?

THE CRISIS BEGINS

On October 26, 2018,President Maithripala Sirisena, in an unprecedented and unexpected move, deposed Ranil Wickremesinghe as Prime Minister and appointed his one-time adversary, Mahinda Rajapaksa as Prime Minister. This otherwise illegal transfer of power was justified by the President on the grounds that his coalition, the United People’s Freedom Alliance (UPFA) had withdrawn from the National Unity Government coalition led by the United National Party (UNP). According to Sirisena’s logic, the withdrawal of one party from a coalition of parties in Government led to the automatic dissolution of the Cabinet of Ministers and the post of the Prime Minister.

END OF NATIONAL GOVERNMENT AND CONSTITUTION

The Constitution of Sri Lanka refers to the words “National Government” only twice in its entire 221 pages and both times under Article 46 of the Constitution on page 42. Under Article 46 (4), the restriction on the maximum number of Cabinet Ministers being 30 is removed when a National Government is formed if Parliament so determines. Article 46 (5) then attempts to provide a very poor meaning of what is meant by a National Government. Nowhere in the remaining 220 pages of the Constitution does it state that when a National Government ends or one of its coalition members leave that the Cabinet of Ministers automatically dissolves.

DISSOLUTION OF CABINET AND COMMON SENSE

President Sirisena and those justifying his illegality argue that the dissolution of the Cabinet of Ministers when the UPFA withdrew from the National Unity Government was, common sense. Common sense would argue that the express, written provisions of the Constitution should prevail over the questionable sense of a man who has clearly failed to read them.

Article 48 titled “Dissolution of the Cabinet of Ministers” expressly reads that the Cabinet of Ministers is dissolved either upon the Prime Minister ceasing to hold such office or if Parliament rejects the Statement of Government Policy or the Appropriation Bills or passes a vote of no-confidence in the Government. The Constitution does not, even in its most imaginative reading, state that the Cabinet of Ministers automatically dissolves when a National Government ends. What should have happened, is the reduction in the number of Cabinet Ministers from around 45 to 30 as required under Article 46 (1) of the Constitution – which anyway would have happened once all the UPFA members left the Cabinet.

PROROGATION DEBACLE

On October 27, 2018, in an effort to buy time to splurge on new Cabinet Ministers in trying to win over a majority in Parliament, President Sirisena exercised his powers under Article 70 (3) and prorogued Parliament until November 16, 2018. The Gazette No. 2094/45 (“Prorogation Gazette”) of the President expressly reads and recognises that he is exercising his power to prorogue only under Article 70.

On November 4, 2018, Sirisena issued Gazette No. 2095/50 (“Summoning Gazette”). In the Summoning Gazette, he exercised his powers under Article 70 (3) (i) and summoned Parliament to meet on November 14, 2018.

ORIGINS OF THE POWER TO SUMMON, PROROGUE AND DISSOLVE PARLIAMENT

The power of the Executive to summon, prorogue and dissolve Parliament is derived from the historic powers of the Crown of the UK to do so. These powers of prorogation and summoning still remain, without any express written limitation, with the Crown over its subjects in the UK, Canada, Australia and other dominions of Great Britain. Although such powers remain without any express written restrictions, a long-settled Constitutional convention has required that the exercise of such powers over Parliament can only be done with the consent of Parliament. To do otherwise would result in the Executive usurping the Legislature and thereby violating the basic tenets of democracy requiring the separation of powers.

POWERS OF GOVERNOR GENERAL OF CEYLON AND THE FIRST NON-EXECUTIVE PRESIDENT

The powers to summon, prorogue and dissolve remained with the Governor General of Ceylon until 1972 when Sri Lanka became a Republic. Such powers were then conferred on Sri Lanka’s first President, William Gopallawa. Under Article 21 of Sri Lanka’s first republican constitution of 1972 (“1972 Constitution”), the otherwise ceremonial President had the power to summon, prorogue and dissolve the National State Assembly (the former name of our Parliament) without any restriction in Article 21. The only qualification to this unrestricted power was Article 27 (1) of the 1972 Constitution which required the President to always act on the advice of the Prime Minister.

POWERS OF THE EXECUTIVE PRESIDENT

Following the introduction of the present Constitution in 1978 when the Executive Presidency was introduced, these same powers of prorogation, summoning and dissolution of Parliament held by the previously ceremonial President and the Governor General were transferred to the new President. The constitutional convention still required that the exercise of these powers was done with the consent of Parliament. This convention has been breached twice in Sri Lanka’s constitutional history. The first, when President Chandrika Kumaratunga sacked the UNP government in 2004 and dissolved Parliament and the second time, in October 2018 , which brought us to the present crisis.

The difference between the two incidents is, however, that President Kumaratunga had the legal authority to sack her Government under the Constitution at that time, even though it violated established a Constitutional convention. President Sirisena, on the other hand, gave up those express legal powers when the 19A to the Constitution was successfully passed in 2015.

19A AND POWERS OF PRESIDENT TO SUMMON, PROROGUE, DISSOLVE PARLIAMENT

The 19A to the Constitution was a historic piece of legislation for Sri Lanka. Since 1994, all candidates elected to the office of the President, including Presidents Chandrika Kumaratunge and Mahinda Rajapaksa, were elected on the promise of abolishing the Executive Presidency. All Presidents, once elected, failed to fulfill that promise.

President Sirisena, however, became the first President to have nearly fulfilled that promise. Through the 19A a significant amount of the powers of the Executive was rightfully transferred back to Parliament and the independent commissions. For the last 3½ years, it appeared that the checks and balances vital for a democracy were restored and Sri Lanka’s slide into authoritarianism had ended.

PRESIDENT IS RESPONSIBLE TO PARLIAMENT

Importantly, the 19A inserted Article 33A (identical to the previous Article 42 but this time under the section on the powers of the President), which made the President “responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law”. This provision re-emphasised that the President was always accountable to Parliament when he exercised his powers, including his powers to summon, prorogue and dissolve.

Together with the other amendments, Parliament and the people had re-established their supremacy and independence over a single person occupying the seat of the Executive.

PRESIDENT ATTEMPTS TO DISSOLVE PARLIAMENT

On November 9, 2018, Sirisena dropped another Friday night bombshell by issuing Gazette No. 2096/70 and attempting to dissolve Parliament (“Dissolution Gazette”).

In the Dissolution Gazette, President Sirisena states that he is dissolving Parliament subject to his powers under Article 70 (5) (which concerns the process and the obligations of the President following dissolution), Article 62 (2) (which confirms that the life of Parliament is five years, unless sooner dissolved) and the apparent trump card – Article 33 (2) (c) (which refers to the general power of the President to summon, prorogue and dissolve Parliament).

CONSTITUTION IS NOT A BUFFET

The Dissolution Gazette conveniently ignores Article 70 (1) which reads 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 Dissolution Gazette also ignores Article 33A and his responsibility to Parliament.

In both the Prorogation Gazette and the Summoning Gazette, President Sirisena only recognises Article 70 as that which grants him the power to prorogue and summon Parliament. No reference is made in either the Prorogation Gazette or the Summoning Gazette to the disputed Article 33 (2) (c).

By reading the last three Gazettes issued by the President, it is clear that he sees the Constitution as a buffet – where he can pick and choose the Articles he likes depending on his mood and which diet he is on. But, Constitutions don’t work like diets or buffets. You must always read the Constitution and any legislation or even a contract – as a whole.

THE SUPREME COURT CHALLENGE

On Monday, November 12, 2018, 10 petitions were filed in the Supreme Court of Sri Lanka against the Dissolution Gazette of the President.

The petitioners argued that the Dissolution Gazette was unconstitutional and violated Article 70 (1) which prevented the President from arbitrarily dissolving Parliament prior to 4 ½ years of its first meeting. The respondents and intervening petitioners in support of the Dissolution Gazette, which included the Attorney General, argued that Article 33 must be read in isolation of Article 70 (1) and that Article 33 (2) (c) (on the general power of dissolution) has no relation to Article 70 (1) (on how that power can be exercised).

RULES OF INTERPRETATION

The rules of statutory interpretation have been long settled by various common law judgments. Studying these rules form part of the basic legal education of any lawyer.

There are three rules of interpretation that are relevant to the present challenge in the Supreme Court. They are the:

1. Rule on intention;

2. Rule on reading the whole text; and

3. Rule of generalia specialibus non-derogant. Intention of Parliament and 19A

For at least 600 years, common law courts have maintained that the primary object of statutory interpretation is to:

a) determine what intention is conveyed either expressly or by implication by the language used in the law; and

b) to give effect to the intention of the lawmaker (in this case, Parliament) as that intention is to be gathered from the language used having regard to the context in connection with which it is used.

The rule on intention has often been described by various historic judgments as ‘the only rule’, ‘the paramount rule’, ‘the cardinal rule’ or ‘the fundamental rule of interpretation, to which all others are rules are subordinate’.

The intention of Parliament when passing the 19A was crystal clear from its inception. The purpose of the amendment was to restrict the powers of the President, prevent the Executive from capturing Parliament and to restore the independence of Parliament. In fact, excerpts from the Hansard confirm that even intervening petitioners in the current Supreme Court challenge, such as parliamentarian Prof. G.L. Peiris, affirmed that through the 19A, the President could no longer dissolve Parliament until at least 4 ½ years had passed or until twothirds of all Members of Parliament consent to dissolution.

An interpretation that Parliament did not intend to restrict the President’s powers but in fact, did the very opposite, by giving him an unrestricted power to dissolve Parliament whenever he wished, would be a direct violation of this cardinal and most fundamental rule of interpretation.

RULE ON READING THE WHOLE TEXT

The rule on reading the whole text requires that every part of a statute must be considered together with the other parts and kept subservient to the general intent of the whole enactment.

The rule requires that a law must not be read in truncated parts and that its provisions must be read in relation to the whole law.the rule further emphasises that a statute’s clauses and phrases must not be taken as detached and isolated expressions, but the whole and every part of it must be considered in fixing the meaning of any of its parts in order to produce a harmonious whole.

Sir Edward Coke explained this rule as far back as 1628: “[I]t is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for the best expresseth the meaning of the makers.” Coke added: “If any section [of a law] be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of the other.”

This rule is also aligned with the rule against surplusage which directs that the proper interpretation of a statute is the one in which every word, phrase, section, etc. has meaning. Under this rule, the law must be interpreted in such a manner that no other parts of the law are made redundant or meaningless.

The primary argument of the respondents and the intervening petitioners in the Supreme Court challenge is that Article 33 must be read in isolation of Article 70. Aside from violating the rule on reading the whole text, if the Supreme Court was to agree with such an interpretation, it would also render Article 70 (1) redundant and meaningless. this would violate the rule against surplusage.

GENERALIA SPECIALIBUS NON-DEROGANT RULE

This 19th century rule requires that whenever there is a general provision in a law which, if taken in its most comprehensive sense, would override a particular, specific provision in the same law, the particular provision must be operative.

The purpose of this rule is to ensure that general provisions do not override specific ones.

The specific and the qualification will always trump the general. Article 33 of Sri Lanka’s Constitution sets out the general powers, duties and responsibilities of the President. These powers include, amongst others, the general power to summon, prorogue and dissolve Parliament. However, it is Article 70 which sets out how that general power on summoning, proroguing and dissolving Parliament can be exercised. Article 70 is the particular, specific provision and Article 33 is the general provision. The application of this rule means that Article 70 must override Article 33.

There is an inherent danger in the argument that Article 33 of the Constitution must be read on its own, in isolation of other provisions of the Constitution.

Article 33 (2) (c) may describe the President’s general power to summon, prorogue and dissolve Parliament. But, it is Article 33 (2) (f), if read in isolation, that may pose a greater threat to Sri Lanka’s democracy and to the Court itself.

Article 33 (2) (f) describes the President’s general power to appoint the Chief Justice and other judges of the Supreme Court, the President of the Court of Appeal and other judges of the Court of Appeal.

Article 33 (2) (f) does not refer to Article 107 (1) which guarantees the independence of the judiciary and which require that the appointment of the Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and of the Court of Appeal be approved by the Constitutional Council.

If the argument that Article 33 (2) (c) must be read in isolation wins, then it won’t be long before Article 33 (2) (f) is also used in isolation – allowing the President to literally pick people from the street and appoint the Chief Justice and other justices of the Supreme Court and Courts of Appeal. With that one strike will end 217 years of the independence of Sri Lanka’s judiciary and following that - Sri Lanka’s democracy – as there will be no one else left to speak.