SC re­serves or­der on pe­ti­tions chal­leng­ing Pres­i­dent's ac­tion

Sunday Times (Sri Lanka) - - NEWS - By Ran­jith Pad­masiri

The Supreme Court on Fri­day re­served or­der on the Fun­da­men­tal Rights pe­ti­tions filed against Pres­i­dent Maithri­pala Sirisena’s gazette no­ti­fi­ca­tion to dis­solve Par­lia­ment. Ac­cord­ingly, the in­terim or­der sus­pend­ing the gazette no­ti­fi­ca­tion was ex­tended un­til the court’s or­der is given.

On four days this week, a seven-mem­ber bench headed by Chief Jus­tice Nalin Per­era heard sub­mis­sions from lawyers rep­re­sent­ing 10 pe­ti­tion­ers and eight in­ter­ven­ing pe­ti­tion­ers. Though the hear­ings had orig­i­nally been sched­uled for three days, the court con­tin­ued for an ex­tra day. Hear­ing of the pe­ti­tions fi­nally ended at about 7.30pm on Fri­day.

Aside from the Chief Jus­tice, the other mem­bers on the bench are Jus­tices Buwaneka Aluwi­hare, Sisira J. de Abrew, Priyan­tha Jayawar­dena, Prasanna S. Jayawar­dena, Vi­jith K. Malal­goda, and Murdu Fer­nando.

The hear­ings be­gan with the pe­ti­tion­ers' coun­sel mak­ing their sub­mis­sions. At­tor­ney Gen­eral Jayan­tha Jaya­suriya then made sub­mis­sions for the re­spon­dents. There­after, the in­ter­ven­ing pe­ti­tion­ers's coun­sel made sub­mis­sions. Af­ter that, the pe­ti­tion­ers' coun­sel re­sponded. The hear­ings con­cluded with the AG's sum­ming up.

The bench lis­tened pa­tiently to all the coun­sel, and even asked ques­tions when the judges wanted clar­i­fi­ca­tions.

Tight se­cu­rity was in place at the Supreme Court com­plex on all four days of the hear­ings. Po­lice and Spe­cial Task Force (STF) per­son­nel were posted at var­i­ous places.

Op­po­si­tion Leader R. Sam­pan­than's coun­sel K. Kanag-Iswaran pointed out that the Pres­i­dent could dis­solve Par­lia­ment only af­ter it com­pletes four and a half years of its five- year term. If the Pres­i­dent wished to dis­solve Par­lia­ment be­fore that, he could only do so if two thirds of the MPs ap­proved a mo­tion and sent it to him.

He pointed out that the Pres­i­dent's ac­tion was not in line with these two pro­vi­sions in the Con­sti­tu­tion. There­fore, the Pres­i­dent's gazette no­ti­fi­ca­tion was con­trary to the Con­sti­tu­tion, he ar­gued.

The United Na­tional Party's coun­sel Thi­lak Mara­pana pointed out that the dis­so­lu­tion of Par­lia­ment un­der Ar­ti­cle 62(1) of the Con­sti­tu­tion must take place within the pro­vi­sions set out in Ar­ti­cle 70(1). As these pro­vi­sions had been ig­nored, the dis­so­lu­tion in this in­stance was il­le­gal, he stressed.

Janatha Vimuk­thi Per­a­muna's coun­sel J.C. Welia­muna said that the con­tents of the af­fi­davit sub­mit­ted by the Pres­i­dent’s Sec­re­tary jus­ti­fy­ing the dis­so­lu­tion could not be ac­cepted.

A t t o r ney Gen­eral Jayan­tha Jaya­suriya who ap­peared for the re­spon­dents along with So­lic­i­tor Gen­eral Dap­pula de Livera, ar­gued that if the Pres­i­dent had vi­o­lated the Con­sti­tu­tion, only Par­lia­ment could take ac­tion against him. Stat­ing that the SC had no ju­ris­dic­tion to hear FR pe­ti­tions against the dis­so­lu­tion of Par­lia­ment, he re­quested court to dis­miss all such pe­ti­tions. The AG noted that the Pres­i­dent’s ac­tions could not be chal­lenged through an FR pe­ti­tion.

He said the Pres­i­dent had dis­solved Par­lia­ment us­ing pow­ers vested in him un­der the Con­sti­tu­tion, and that the pe­ti­tion­ers' fun­da­men­tal rights had not been vi­o­lated by the dis­so­lu­tion.

The AG also re­sponded to Mr. Kanag Iswaran's ar­gu­ment that un­der the 19th Amend­ment, the Pres­i­dent’s acts or ac­tions had not been con­ferred im­mu­nity. The AG claimed that the Pres­i­dent still en­joyed such im­mu­nity when he dis­charged the pow­ers vested in him un­der the Con­sti­tu­tion, and that this could not be chal­lenged by an FR pe­ti­tion.

Sri Lanka Po­du­jana Per­a­muna (SLPP) Chair­man G.L. Peiris' coun­sel San­jeeva Jayawar­dena, ar­gued that the Con­sti­tu­tion's Ar­ti­cle 62 ( 2) fur­ther af­forded the Pres­i­dent the power to dis­solve Par­lia­ment be­fore the com­ple­tion of its term. He pointed out that Ar­ti­cle 62 (2) was used by Pres­i­dents to dis­solve all but one Par­lia­ment since 1978.

Par­lia­men­tar­ian Udaya Gam­man­pila's coun­sel Manohara de Silva re­quested the court to dis­miss the pe­ti­tions chal­leng­ing the Pres­i­dent’s ac­tions, stat­ing that the SC’s main re­spon­si­bil­ity was to up­hold fun­da­men­tal rights laid down in the Con­sti­tu­tion and that if the court was to grant the re­lief re­quested by the pe­ti­tion­ers, it would vi­o­late the fun­da­men­tal right to uni­ver­sal fran­chise af­firmed in the Con­sti­tu­tion.

Po­lice are seen leav­ing the Supreme Court premises on Fri­day.

So­lic­i­tor Gen­eral Dap­pula de Livera (left) and At­tor­ney Gen­eral Jayan­tha Jaya­suriya (cen­tre) ar­riv­ing in court on Fri­day

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