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

Sunday Times (Sri Lanka) - - NEWS - 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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