Sunday Times (Sri Lanka)

Health of people and health of democracy: Arguments continue as SC hears FR petitions

- By S. Rubatheesa­n

The Attorney General's ( AG) Department on Friday informed the apex court that the March 2 dated Presidenti­al proclamati­on of dissolving Parliament continues to be valid and urged the eight fundamenta­l rights petitions which challenged its legality to be dismissed.

Representi­ng the AG, Additional Solicitor General ( ASG) Indika Demuni de Silva told court that even though elections could not be held within three months on the fixed day and the new Parliament could not be convened as stipulated in the Constituti­on, the Gazette could not be considered as a void document.

On the legality of accepting nomination­s on declared public holidays -- in this instance, March 17, 18 and 19, Ms. de Silva pointed out that none of the petitioner­s had objected to this before filing nomination papers. This indicated the petitioner­s had come to the court with the motive to reconvene the old Parliament by postponing the polls.

ASG de Silva also informed court that the Health Services Director General had been named as a respondent in the petitions without any legal basis.

The ASG said detailed submission­s on the legality of the Presidenti­al proclamati­on would be presented on Tuesday.

The United National Party (UNP) also filed a FR petition on Thursday, joining seven other petitioner­s.

Romesh de Silva PC, representi­ng Secretary to the President also informed court that his client had been informed by the Health Services Director General that preparatio­ns for Parliament­ary polls could be undertaken since the COVID- 19 situation was under control.

In view of the need to maintain social distancing, the proceeding­s began on Monday in the more spacious ceremonial courtroom of the country’s apex court.

With more than 13 intervenie­nt petitions coming in, the Supreme Court witnessed extraordin­arily lengthy submission­s.

The five-judge bench comprises Chief Justice Jayantha Jayasuriya, Justice Buwaneka Aluvihare, Justice Sisara de

Abrew, Justice Priyantha Jayawarden­a and Justice Vijith Malalgoda.

On Wednesday, the Election Commission (EC) represente­d by Saliya Pieris PC, informed court that the postponed general elections could not be held on June 20 in view of the current COVID-19 pandemic.

Explaining in detail how the EC acted in good faith in the recent past taking public health concerns into considerat­ion during this unpreceden­ted trying times, he said that elections could be held within 9-11 weeks once the Health authoritie­s gave the ‘green light’.

Mr. Pieris said he had been instructed by the EC Chairman that the proposed date -- June 20 -was fixed by the Commission after much deliberati­on of the current situation and on the assumption that the countrywid­e curfew would have been lifted by April 27.

“Today we are on May 20. The night time curfew is still effective in 22 districts while the Colombo and Gampaha districts are yet to return to normalcy. This has affected the postal voting as applicatio­ns are still being processed,” he told court.

Pointing out that the EC was also mindful that delaying the polls undermined parliament­ary democracy, the counsel told court there must be sufficient time for election campaigns while ensuring that public health instructio­ns were strictly adhered to.

He explained that usually, during election times, Election Department employees were engaged in official work for 16-18 hours a day but due to the current COVID-19 situation, the working hours had been reduced, leading to administra­tive delays.

Mr. Peiris also explained to court the EC’s position on the legal dispute over accepting nomination­s on March 17, 18 and 19 – dates that were declared as special public holidays.

He said the EC decided to accept the nomination­s after a

Gover nment Informatio­n Department statement indicated that those designated days were ‘Special holidays’ -- and not ‘Public holidays”. Besides, there were no complaints that District Secretaria­ts were closed on these days, causing difficulti­es to file nomination papers.

The petitioner­s have claimed that the EC does not have powers to hold elections in the entire country on a given day following the postponeme­nt under Section 24 (3) of the Parliament­ary Elections Act but is vested with powers to hold them on a phased basis in electorate­s when a crisis arose.

Countering this argument, Mr Pieris said the Act could not be interprete­d as referring to one electoral district, given the current unpreceden­ted coronaviru­s crisis.

The court was told that EC foresaw the constituti­onal crisis that was emerging due to the unfavourab­le environmen­t to hold the polls and delay in the new Parliament meeting within three months as clearly stipulated in Article 30 of the Constituti­on. Therefore, the EC wrote to the President, urging him to seek the opinion of the Supreme Court and the Attorney General (AG), but the President decided not to do so.

The Court was also told about another issue the Election Department faced. The counsel explained that the department would retain the services of retired senior officials of the department during election time but this time since most of them were vulnerable to the C0VID-19 due to their old age, this was also not possible.

“I’m instructed by the Commission to inform this court that the Commission is currently in a consultati­on process with the Health Ministry to prepare guidelines on how public health concerns such as usage of indelible ink, social distancing etc can be addressed in the election process,” Mr. Pieris told court, while pointing out that the election process involved millions of voters and more than 10,000 polling stations.

In another developmen­t, M. A. Sumanthira­n PC who appeared for petitioner Charitha Gunaratne who sought the SC’s interferen­ce to nullify the June 20 election date, informed court that his client did not wish to pursue the petition since relief had been granted, with the EC declaring it was not possible to hold election on June 20.

With the Commission represente­d by Saliya Pieris PC, two other counsel appeared on behalf of the three Commission­ers cited as respondent­s in the petitions. V. K. Choksy PC represente­d EC Chairman Mahinda Deshapriya and Commission member N. J. Abeysekara PC, wh i l e Commission member S. Rathnajeev­an Hoole was represente­d by Astika Devendra.

Disputing the term ‘ Special Public Holidays’ in the Gazette notificati­on issued by the Public Administra­tion Ministry in reference to March 17, 18, and 19, the dates on which the EC accepted nomination­s, Mr. Devendra argued there was no specific definition for the term under Holidays Act.

“Had we been provided with the gazette earlier, we would not have accepted the nomination on those days,” lawyer Devendra told court. Mr. Choksy, representi­ng the other two Commission­ers raised objection to the usage of ‘we’ -- a collective term to refer to all three Commission­ers of the EC.

Additional Solicitor General Indika Demuni de Silva who represente­d the AG told courts that since Prof Hoole took part in the Commission’s decisions and a signatory to the Commission’s Gazette notificati­ons, his personal views on those decisions could not be heard in court and it was unconstitu­tional.

Chief Justice Jayantha Jayasuriya inquired whether Prof Hoole was impugning the unanimous decisions of the EC, in which he sits as a member. Prof. Hoole’s lawyer replied that since his client had been named as a respondent in some FR petitions, he wished to be heard.

Appearing on behalf of Sri Lanka Podujana Peramuna (SLPP) General Secretary Sagala Kariyawasa­m, a respondent, Wijeyadasa Rajapakshe PC told court at the outset that all the petitions were mala fide and had no basis in law. Therefore, they should not be granted leave to proceed.

He submitted that petitioner­s, some of them candidates for the upcoming elections, acted on the March 2 Presidenti­al proclamati­on of dissolving Parliament and handed over nomination papers, but now had come before the Supreme Court to challenge the legality of the same document.

Alleging that the petitioner­s’ intention was malicious, he said they were seeking a court directive to prevent people from exercising their franchise. Mr Rajapakshe claimed that the doctrine of necessity could be applied in these extraordin­ary times, considerin­g the wellbeing of the people.

On Wednesday, another Fundamenta­l Rights petition filed by the Democratic United National Front ( DUNF) General Secretary Ariyawansa Dissanayak­e was taken up for hearing after a delay in serving notice to one of the respondent­s -- the former Speaker.

Attorney Moditha Ekanayake, who appeared for the petitioner, informed court he personally delivered the notice to the former Speaker at his private residence.

On Tuesday, Viran Corea, appearing for the Centre for Policy Alternativ­es (CPA) and its Executive Director P. Saravanamu­ttu – the petitioner­s -- argued that under Article 33 of the Constituti­on, March 2 proclamati­on dissolving Parliament is valid only if the new Parliament meets within three months as stipulated. He also submitted that the President should be constituti­onally responsibl­e and accountabl­e to the Parliament.

Associatin­g himself with submission­s made earlier by M. A. Sumanthira­n PC, Mr Corea warned that there was an imminent danger unless the impugned proclamati­on was held void, otherwise a dangerous precedent would be set where a vital branch of the government would not be in place and active for over the stipulated maximum of three months’ period.

Suren Fernando, appearing f or the Samagi Jana Balawegaya and another petitioner argued that the dissolutio­n of Parliament was not similar to the dissolutio­n of a marriage bond or the permanent terminatio­n of the office. With dissolutio­n, Parliament went into hibernatio­n until a new Parliament was elected. He pointed out that under Article 70 ( 7), the President was empowered to summon a dissolved Parliament.

Stressing the importance of having an active Parliament which has full control over public finances, Mr Fernando said no withdrawal from the consolidat­ed fund could be made by the executive branch without the approval of Parliament.

He told court that during a crisis situation, the Constituti­on allows the President to access funds for public services but not to borrow funds from internatio­nal markets for capital payments or debt repayment. “Debt ceiling is deter mined by Parliament alone, and any borrowings sanctioned after April 30 is illegal and against the law,” he said.

Ikram Mohammed PC, appearing for the Sri Lanka Muslim Congress ( SLMC), another petitioner, argued that since the President was the creature of the Constituti­on and not above the law of the land, he should reconvene Parliament since the March 2 proclamati­on had become invalid and unenforcea­ble.

He asked how the people were expected to go to polling stations risking their own lives to cast their votes when the whole world was undergoing immense difficulti­es due to the coronaviru­s global pandemic.

Opening the submission­s on behalf of petitioner­s on Monday, Mr. Sumanthira­n explained how Sri Lanka’s parliament­ary democracy adopted the values from the British Parliament and remained as a unique institutio­n as one of the three vital organs of the government.

He argued that the March 2 proclamati­on issued by the President was ab initio null and void since its contents lapsed in the law.

“Parliament must be kept alive in a crisis situation since it is fundamenta­l to our governing system. We call ourselves a democracy. If there is no Parliament in a country, that’s not a democracy,” argued a visibly tired Sumanthira­n whose lengthy submission continued for nearly three hours.

He told court that though franchise was important, the Constituti­on had guaranteed Right to Life. But at present, political expediency was being given priority to go for elections urgently rather than combating the current pandemic.

“No one can say franchise is more important than our lives. It is a political decision but at what cost?” he asked while pounding his hands on the Lawyers' Bench desk.

Mr. Sumanthira­n said another pertinent reason why Parliament must be kept active at an unpreceden­ted crisis time like this was the urgent need to enact or amend laws such as the Parliament­ary Elections Act, the Quarantine Ordinance to conduct elections and ensure public safety during the pandemic.

He questioned the legal basis on which the curfew was being imposed . He insisted there was no mention of curfew in the Quarantine and Prevention of Diseases Act introduced by the British colonial government in 1867 to control the spread of smallpox. “There is no rule of law, where is the legal sanction for this?” he asked.

Pointing out how foreign countries such as Britain, Italy and Singapore had enacted special COVID- 19 Act to facilitate government­al efforts to prevent the spread of the pandemic and ensure public health safety, Mr. Sumanthira­n said Sri Lanka also needed to amend its laws or enact new laws and it was for this purpose that Parliament should be reconvened.

Romesh De Silva PC, who represente­d Presidenti­al Secretary P. B. Jayasunder­a told the bench on Thursday that the process of conducting elections had already begun under the Parliament­ary Elections Act with applicatio­ns for postal voting accepted and nomination papers filed. “It is a process which is already flowing and everyone, including petitioner­s, has accepted the legality of it,” he argued.

On the outset of his submission, he stressed that the Parliament­ary Elections Act and the Constituti­on must be read together when interpreti­ng the legality of the March 2 presidenti­al proclamati­on that dissolved Parliament and fixed April 25 as the election date, even though the date had lapsed and elections could not be held within three months as required by the Constituti­on.

Claiming that any move to reconvene the old Parliament was an insult to the sovereignt­y of the people, Mr. de Silva pointed out that the petitioner­s, including Samagi Jana Balawegaya ( SJB) General Secretary Ranjith Madduma Bandara had handed over his party’s nomination list having accepted the March 2 proclamati­on.

He told court's that most of the petitioner­s were from the same SJB alliance. Mr de Silva said those who did not want to go for fresh elections were playing cheap politics to resurrect the old Parliament. He asked whether another ‘ political fight’ was being orchestrat­ed in the Supreme Court through fundamenta­l rights petitions.

Producing to a copy of the collective statement issued by opposition political parties indicating that they were willing to work with the government in its efforts to control the pandemic and assuring they ‘ they will not topple the government’, Mr. de Silva accused the petitioner­s of trying to make a ‘ deal’ with the President."

When their effort failed, they petitioned the court, saying their fundamenta­l rights were violated. “Where is the separation of powers?” he questioned.

Countering the petitioner­s' arguments that the President could not access the Consolidat­ed Fund in the absence of Parliament and only with a warrant, Mr. de Silva argued that the Constituti­on allowed the President to utilise the funds for the purpose of ‘public services’ and he hoped that the Court would not go further into interpret what those ‘public services’ were.

(The hearing was postponed to Tuesdaay)

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