DHARSHAN WEERASEKERA, ATTORNEY-AT-LAW

The newspapers report that six Political Parties will challenge President Sirisena’s dissolution of Parliament before the Supreme Court.  Meanwhile, there is a great deal of commentary by public intellectuals, academics and other pundits as to whether or not the dissolution is justified.

Many of the persons who are arguing back and forth about this matter do not appear to be practicing lawyers, i.e. persons who have argued a case before a court of law, especially the Supreme Court, and therefore are not familiar with some of the practical difficulties involved in a case such as the present one.

In my view, the challenges will fail in limn, and it is important for lay readers especially international readers to understand why, so that there will not be undue criticism of the court if and when the ruling that I predict does come down.  In this article, I will briefly explain the reason that I think the challenges will fail in limn as aforesaid.

As far as I am aware, the persons who support the dissolution base their argument on Article 33(2)(c) of the Constitution as amended, which says in essence that in addition to the powers granted by the Constitution and other written laws, the President has the power to ‘summon, prorogue and dissolve Parliament.’[1]

On the other hand, the critics of the dissolution base their argument on Article 70 of the Constitution as amended, which states that, ‘The President may by proclamation summon, prorogue or dissolve Parliament provided that the President shall not dissolve Parliament until the expiration of 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 its members including those not present.’[2]

Clearly, there is a clash between Article 33(2) (c) and 70.  And presumably, according to the pundits, the cases that are going to be filed will call on the court to resolve this conflict, that is to say, give a definitive interpretation for Article 33(2) (c) or 70, or both.  In my view, the cases will never get that far, but will be dismissed in limn because of the following reasons.

As far as I am aware, the only way that private parties can approach the Supreme Court on a matter such as the present controversy is under Chapter 3 of the Constitution, i.e. Fundamental Rights.  Fundamental Rights are individual rights—for instance, the freedom of thought and conscience, freedom from unlawful arrest, right to equal protection of the law, freedom of speech and expression, and so on.  There are 14 specific fundamental rights set out in Chapter 3 of the Constitution.

What the court is called on to do in a fundamental rights case is to see whether the particular facts and circumstances cited by the petitioner demonstrate a violation of one or more of the 14 rights set out in Chapter 3, or conversely, whether one or more of those rights can be expanded in such a way as to permit the petitioner to seek personal relief under them.

The point is that, in an FR case, the court can only interpret one or more of the 14 rights set out in Chapter 3.  Court cannot, by definition, interpret other provisions of the Constitution.  This is because, the Constitution is the Supreme Law of the Land, and an interpretation of any particular provision of the Constitution has the potential to affect all the citizens of Sri Lanka.  Court cannot, in the course of providing personal relief to a particular petitioner, create a situation where the same said relief has the potential to harm the interests of other citizens.

Therefore, as a general matter, I don’t think court will be able to interpret Articles 33(2) (c) or 70 in the course of a fundamental rights application. The following more specific matter should also be considered in this regard.

It seems to me that, if Political Parties are filing the proposed challenges against the dissolution of Parliament, they will probably base their argument on the claim that their fundamental right under Article 12—right to equal protection of the law—has been violated.  In other words, they will claim that the President’s action has deprived them of their right to enjoy a full term of office as MP’s for the duration specified in Article 70 of the Constitution as amended by the 19^th Amendment.

However, to succeed in a case under Article 12, one has to show that one was subjected to discrimination of one sort or another.  Our courts have now established that the essence of Article 12 is that ‘equals must be treated equally,’ in other words, for a person to succeed in a claim of discrimination he or she must show that they were treated differently in comparison with their peers.

So, the petitioners in the proposed cases, petitioners who are all MP’s, must show that the President’s actions have caused them a harm or disadvantage to which their peers have not been subjected.  But, in this case, the dissolution of Parliament has affected all the MP’s—they have all in effect lost their jobs.  In short, equals have been treated equally.  Therefore in my view, an appeal to Article 12 cannot be made.

I concede that, the Political Parties aggrieved by the President’s action might be able to challenge the gazette dissolving Parliament by way of a writ application. But, in that case the application must be in the Court of Appeal and not the Supreme Court.  However, the problem for the petitioners if they resort to a writ application at this stage is that they probably will not have enough time to prevent the General Elections from taking place on 5^th January 2019 as scheduled.

This is because, if a writ application to annul the gazette dissolving Parliament is taken up by the Court of Appeal, the State will immediately argue that the case involves a Constitutional matter and hence as per Article 125 of the Constitution must be forwarded to the Supreme Court.  If the matter is forwarded to the Supreme Court, then the issues raised earlier in this article come into play, and the case will be dismissed in limn for the reasons cited earlier.  In short, Sirisena has won.  He has checkmated Ranil and his gang.

I have said some nasty things about Sirisena in the past including in articles published on lankaweb and still stand by much of what I said.  But, it is difficult not to admire Sirisena.  He is a clever, clever man. As far as I am concerned, he is the cleverest and boldest politician in Sri Lanka at present, perhaps ever.  Watching him in action is like watching a great athlete—say, someone like Ali, Jordon or Michael Phelps—in action:  one watches for the sheer beauty of the performance.  Bravo Mr. President!  Give ‘em hell!

[1] See Section 5 of the 19^th Amendment to the Constitution

[2] See Section 17 of the 19^th Amendment to the Constitution