A Textbook Case for the Supreme Court
Posted on December 4th, 2018
Dilrook Kannangara
Can the President dissolve parliament in 2018? This is the most crucial question affecting political circles today and keenly watched by all politicians. The Supreme Court has to decide. It is a straightforward textbook case. The simple answer is – no; the parliament cannot be dissolved before February 2020. However, if the President dissolves it, there is nothing anyone can do. It is a violation of the Constitution, but as long as he is not impeached, he is safe and he will get away with dissolving the parliament unconstitutionally.
This doesn’t mean the 19A is any good. Personal opinions about 19A and political clans are irrelevant to a legal decision. Unfortunately, most people airing their opinion have been unable to look at the issue professionally. They are politically biased.
The fact remains that in 2015 only one MP opposed 19A. That MP was rejected by the voters (right or wrong). Over 200 MPs supported it. This has given it legitimacy. 19A is very much part of the Constitution. Article 70(1) introduced by 19A prevents the President from dissolving this parliament for four and a half years since its convening in September 2015.
If the Supreme Court interprets the Constitution word to word, it is obvious the President cannot dissolve parliament before February 2020.
If the Supreme Court interprets the Constitution based on the intention of lawmakers, the President still cannot dissolve parliament earlier than that as it was a widely touted promise and a matter boasted by the then parliament and the president. The President boasted at the UN General Assembly how he took it upon himself to walk to each MP and plead for their support to reduce presidential powers and he succeeded in passing the 19A. The intention of lawmakers cannot be clearer. Just because the thinking of 2015 changed in 2018 doesn’t mean the Constitution interpretation changes. Thankfully, the Constitution doesn’t change so suddenly and sharply as Sirisena’s mind.
Even if the Supreme Court goes to first principles of democratic governance, the three branches of governance that exercise people’s sovereignty must be independent. The Executive, Legislature and the Judiciary must be independent of one another. The Executive must not be allowed to dissolve the Legislature just because he cannot work with the majority there.
Sadly, in the Lankan context, the Executive frequently interferes with the other branches of governance. This makes the Office of the President extremely important. Therefore, the right approach at this juncture is for Sirisena to seek a fresh mandate via a presidential election. The 2015 mandate has elapsed. He not only failed but also reversed and ridiculed his mandate. There is no Constitutional bar on holding a presidential election. In fact, all Presidents seeking reelection called for presidential elections one year before their term ended. Sirisena’s term is five years after 19A. His term ends in 2020 January. However, a presidential election must be held by November 2019. It is just appropriate that he too call for a presidential election a year earlier in 2018. JR didn’t wait till 1983; Chandrika didn’t wait till 2000; Mahinda didn’t wait till 2011 and 2016 to hold presidential elections. At that time the presidential tenure was six years. All of them held it a year earlier. Sirisena must do the same.
December 4th, 2018 at 4:13 pm
Calling for a Presidential Election is totally irrelevant to the current day crisis. Even if a new President comes to power, it will not change the situation in the Parliament. On top of that, calling for another Presidential Election based on 19A is madness.
Some of the provisions in 19A are illegal as the traitor Jayampathy thought he was a hero and he represented the public. He only represented LieTTE and the separatist camp. He should be tried in the court for misrepresentation and violating the constitution. Majority of those who raised the hand in favour in the parliament were all fools who do not even has grade 10 qualifications.
Axing certain powers of the President require Peoples mandate as People are the sovereign of the country as per the same constitution, but not the rogue MPs in the parliament who have been bought by Separatist Tamil Die-Ass-Pora and the West with vested interest to invade this land.
The dispute which is subject to determination of the SC should be left to them.
Anyone who loves this land, should avoid those who sell the key assets to foreigners to come back to power.
Anyone who fed from Mother Lanka and received free education from Mother Lanka and breathed fresh air and drank water from Mother Lanka should pay back to her by providing protection to her all the time.
Those who do not protect Mother Lanka are lower than the hyenas and vultures who feed from the left-overs from the powerful ones.
The whole country is waiting to see if the SC panel are going to be hyenas who are going to feed themselves by eating piece by piece of Mother Lanka or true sons and daughters of Mother Lanka who will gently embrace her and protect her.
Only two more days to wait!!
December 4th, 2018 at 4:42 pm
I agree with Dilrook 100%, but the last paragraph is too soft on Sirisena, worst ever presiden in Lankan history. He cannot win a Presidential election even if he competes with Ranil this time, I am 100% confident. Therefore, there is a great danger in Dilrook’s proposal unless a differen candidate is chosen if Ranil is contesting ( looks like).
I am very sad how people have not realise the danger and comment here with no consideration to the welfare of the people of my country but looks like brainwashed by CUNNING traitors who champion “nationalism” thereby destroying real Nationalism altogether.
This is a PRIMARY SCHOOL text book case. Why are we spending so much money on it and so foolish to listen to biased “sri lanka lawyers” whose names should be struck off for the registry.
Coming back to the danger we are facing, I compared how LKR dropped against the US dollar VS Indonesia Rupiah (IDR) against the same elsewhere. LKR was doing better than IDR until end of October then started sliding down until it is about 17% lower than in January whilst IDR is now only 7.5% lower than January. Unscrupulous despremiyos has done so much more damage than Ranil.
December 4th, 2018 at 5:47 pm
Mother Lanka is in the hands of the following SC Bench now.
1. Chief Justice Nalin Perera,
2. Justice Buwaneka Aluwihare,
3. Justice Sisira J de Abrew,
4. Justice Priyantha Jayawardena,
5. Justice Prasanna S. Jayawardena,
6. Justice Vijith K. Malalgoda and
7. Justice Murdu Fernando.
Lets see if they are going by the word by word of a document made by humans with errors and interpret it in favour of a bunch or rogues who are waiting to sell piece by piece of Mother Lanka.
They have to remember that they were made educated free by Mother Lanka herself to sit in such high places. If they contribute to the destruction of Mother Lanka, they will pay back severely for this bad deed.
December 4th, 2018 at 6:00 pm
As Senaka Weeraratna has stated in his article of Nov 28’18 ( Colonial crimes in British occupied Ceylon during the freedom struggles (1796 – 1948) ) In the 1520s Machiavelli wrote: “When it is absolutely a question of the safety of one’s country, there must be no consideration of just or unjust, of merciful or cruel, of praiseworthy or disgraceful; instead, setting aside every scruple, one must follow to the utmost any plan that will save her life and keep her liberty.”
Instead of trying to interpret and abide by a very defective 19A which has been added to the constitution we must all take to heart the advice given by Machiavelli. We are allowing a badly written piece of the constitution to put the country in danger of great instability. Traitorous groups such as the TNA and the JVP are becoming a party to the UNP trickery to somehow put Ranil back as PM so that he can pass whatever he wants and then get out. If he is allowed to come into power then the UNP, TNA, JVP block will pass all the bills they have been trying to pass and sell off all the State assets they wanted to sell. Ranil is a desperate maniac and should be put behind bars as Mr. Wijewickrema suggests before it is too late.
If the Sri Lankan judiciary allows this great tragedy to unfold then the country will plunge into instability and knowing Ranil he will declare martial law as he did in 1988-90 period to kill 60,000 JVP Sinhala youths. The irony is that today it is the JVP which is helping the very person who killed off their leaders to succeed. TNA is a group who were during the time of the LTTE terrorists very much aligned with Prabhakaran. There are many photos of TNA leaders with Prabhakaran. Today they are the democratized version of the LTTE pursuing the same goals that the LTTE did in trying to win a separate state for the Tamil people. The LTTE a terrorist group, were able to succeed as much as they did thanks to the help they received from International groups. Norwegians came as mediators on an invitation by CBK and were completely biased towards the LTTE. Ranil was one of their key allies who almost signed over 2/3 of Sri Lanka to the LTTE as a separate state. He was stopped only by CBK who sacked him from the PM post in 2004. Now history is repeating itself and he does not seem to learn from history.
I just saw that the PM and cabinet have been put on hold by the courts. I wonder what will happen now with no government in place. As I said the courts must take into account Machiavelli’s advice and do what is right to protect the country instead of trying to split hairs on legal minutiae.
December 4th, 2018 at 6:20 pm
It is not the court that is acting senselessly. It is President Sirisena. He contradicts himself and holds governance to ransom.
What if a parliamentary election is held and Mahinda wins? Will Sirisena allow Mahinda to become PM? No. His choice is Sajith. He will make Sajith the PM and get Mahinda camp MPs to that side with ministries.
Funny thing is when Sirisena won the election, some said he won with LTTE Rump’s money! Now he has suddenly become the protector of Sri Lanka for them. Which is correct?
For this reason, Sirisena must seek a fresh mandate. If he is re-elected, he can shut up the parliament and carry on. Ranil will be a nobody anyway. If he loses, the crisis settles. Ranil cannot win a presidential election and doesn’t wish to contest one. Sajith will contest a presidential election.
December 4th, 2018 at 8:19 pm
Please see what Gomin Dayasiri has to say.
“https://www.youtube.com/watch?time_continue=1968&v=2AJhMvCicBQ”
This country is being destroyed by few individuals. It is not all Ranil and UNP. You can’t solve this by using thuggery.
December 5th, 2018 at 3:08 pm
We all know that both of you were trying to interpret constitution by reading bits and pieces here and there. But looks like you did not understand it the way Attorney General had done.
Attorney General Jayantha Jayasuriya today gave a good analysis and confirmed that President has a legitimate right to dissolve the parliament and fell within the Powers of the President as the head of State.
He has also objected to the Supreme Court, undertaking to examine the decisions taken by the President, as Head of State and Head of the Armed forces.
The AG explained that the impugned conduct of the President to dissolve the parliament fell within the Powers of the President as the head of State. It was not subject to Article 126 on fundamental rights. The judicial powers of the president were exercised through the Supreme Court, Article 33/3 referred to the President’s power to dissolve the parliament, as the Head of State, Armed forces etc.
The Attorney General also referred to Article 70 of the Constitution, which dealing with the President’s power to dissolve Parliament.
Article 33/2 refers to the powers of the President to dissolve the Parliament, subsequent to the 19th Amendment to the constitution.
December 5th, 2018 at 3:24 pm
@Neela
The Constitution cannot be interpreted disregarding Article 70(1). It was Sirisena who pushed the 19A. So the President’s full support for 19A is there (though he changed his mind which has no constitutional validity).
Even Sirisena knows it! Look at Sirisena’s instructions to parliament (via the UNP) to pass an amended no confidence motion against Mahinda yesterday. He said he has no problem with part 2 of the NCM on November 14 but insisted that part 1 be deleted. Part 1 says President Sirisena unconstitutionally removed the PM and the Cabinet. Part 2 says the parliament has lost faith in Mahinda (and Sirisena has no problem with it).
So the UNP presented an amended NCM against Mahinda yesterday. It says, having deleted part 1 of the 14 November NCM.
Sirisena showed some promise on many matters but all of them ended in a mess.