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Constitution not clay in hands of contesting parties: Counsel

5 December 2018 05:34 am - 19     - {{hitsCtrl.values.hits}}


President’s Counsel K. Kanag Iswaran said yesterday the Constitution was not clay in the hands of contesting parties to be moulded as he or she sees fit while the constitutional language sets the limits of interpretation which aspires to give constitutional unity and harmony.

Appearing for MP R.Sampanthan, he made this submission to the 7-judge bench of the Supreme Court at the hearing of the fundamental rights petition against the dissolution of parliament by the President.

Ten FR petitions had been filed against the dissolution of parliament. The SC bench comprised Chief Justice Nalin Perera, Justices Buwaneka Aluwihare, Sisira J de Abrew, Priyantha Jayawardena, Prasanna S. Jayawardena, Vijith K. Malalgoda and Murdu Fernando.

Kanag Iswaran PC said the President may by proclamation, summon, prorogue and dissolve parliament provided the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date of its first meeting unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of members (including those not present) voting in favour together with the other consequential provisions.

He said this argument was in no manner or form supportive of any contention seeking to give the purported proclamation of dissolution of Parliament constitutional or legal efficacy or validity.

Counsel said Article 70 and the Act of 1981, whether taken individually, collectively or in any other manner whatsoever, did not confer any right, authority or power upon the President to dissolve parliament by proclamation and therefore was a nullity.

He said the parliament consisting of 225 members once elected shall continue for five years from the date of its first meeting and no longer and at the end of the fixed term of five years, parliament stands dissolved automatically without any proclamation being made.

The Counsel said parliament can be dissolved before the expiry of the fixed period of five years as mandated in Article 62(1) by the President by way of a proclamation that too only after the expiration of a period of not less than four years and six months from the date of its first meeting.

He said the Constitution does not permit or countenance any other way in which parliament may be dissolved by the President and as such the purported proclamation of dissolution of Parliament by the President is unconstitutional and is null and void and of no force or effect in law. The petitioners ask Court for a declaration that the decisions and directions in the proclamation is null and void and of no force or effect in law.

The petitions were filed by Kabir Hashim and Akila Viraj Kariyawasam of UNP, Lal Wijenayeke of United Left Front, CPA, Member of the Election Commission Prof. Ratnajeevan. H. Hoole, Attorney-at-Law G.C.T. Perera, Sri Lanka Muslim Congress, All Ceylon Makkal Congress, Mano Ganesan MP.

K.Kanag Iswaran PC, Thilak Marapana PC, Dr Jayampathi Wickremaratne PC, M.A. Sumanthiran PC. Viran Corea, Ikram Mohamed PC, J.C.Weliamuna PC, Ronald Perera PC, Hisbullah Hijaz and Suren Fernando appeared for the petitioners while Gamini Marapane PC with Nalin Marapane, Sanjeeva Jayawardane PC and Ali Sabry PC appeared for the intervenient petitioners opposing the main petitions. (S.S.Selvanayagam)

  Comments - 19

  • Joe rajah Wednesday, 05 December 2018 06:39 AM

    Obvious attorney for the criminal is hired to defend the criminal. You are here’d to do the same because you are paid to do but third grader knows what is right and wrong.

    Sinna Joe Wednesday, 05 December 2018 08:53 AM

    Sour Grapes Noh... so your lawyers are working out of their own pocket?

    AB Wednesday, 05 December 2018 06:53 AM

    Clear-but what would the other guys say ?

    Blue Sivagnanasunderam Wednesday, 05 December 2018 06:58 AM

    Well said Mr Kanaga iswaran; on behalf all centralites and a person who loves demodracy , pls accept our congratulations, No wonder u are another G.G

    Dallas Wednesday, 05 December 2018 07:14 AM

    You can not clip the presidents powers with out the approval of a referendum in some cases.Supreme court said PM can not be made the person in charge of the Cabinet with out approval in a referendum.Then how could the parliament clip his right to dissolve the parliament with out approval by the parliament.Some parts of 19A are null

    johan Wednesday, 05 December 2018 08:57 AM

    When you passed the 19A IN PARLIAMENT with majority of 225 members it was very favourable for you,Now suddenly how you can say there are holes in 19A.

    Don Wednesday, 05 December 2018 10:12 AM

    The supreme court can tell us for sure on the 7th

    Mokan Wednesday, 05 December 2018 07:23 AM

    It sounds a reasonable argument for a lay person lime me

    Shelley Wednesday, 05 December 2018 07:26 AM

    While we ordinary citizens keep watching the court proceedings the thing for us to laugh about is that Gota repeatedly crying sayings all their plans were shattered with 19A.

    Saradiel Wednesday, 05 December 2018 07:30 AM

    Very true. Unfortunately our politicians are so stupid they will not see it or understand it. They will interpret it the way they want for their benefit and never bother to look at the damage it will do to the country. This country to be the wonder of Asia? Simply don't want to comment.

    Unchikun Wednesday, 05 December 2018 07:41 AM

    This is true. I enjoy watching TV debates. I was watching a program and the gentleman who took the speakers seat did not even bring along the constitution with him. Why, he does not understand the contents of it.

    Sunil Wednesday, 05 December 2018 07:42 AM

    Winnowed words of wisdom from one of the brightest legal luminaries the country has produced.

    Johan Wednesday, 05 December 2018 08:36 AM

    Before Taking oaths our politicians must be taught what isConstitution and what are the provisions available.They are thinking it is just clay and could be moulded according to their whims and fancies.And the other problem most of our politicians from top to bottom studied up to 10th standard they cant understand these things

    Jude Wednesday, 05 December 2018 08:53 AM

    Made grand scale mockery of Country's constitution, parliament and democracy!! Simply Ridiculous and Outrageous!!! What's the Legal Fraternity responsibility here!!????

    janaya Wednesday, 05 December 2018 10:06 AM

    good constitutional lesson for everyone. president has made the whole process a laughter. even the headman in a simple village society will handle the affairs with impartiality giving utmost respect to stipulated standards. the theme "so sri lanka" is fast becoming aiyo siri lanka

    Don Wednesday, 05 December 2018 10:12 AM

    Name and Shame of MS.

    GH Wednesday, 05 December 2018 10:43 AM

    Briefly, die-hard UNPers do not like to face Elections! More over, at any cost they need power to rob the nation.

    K. C. John Wednesday, 05 December 2018 02:36 PM

    Is this all you lily-white anti-UNPers have to say? You seem to be suffering from amnesia. It's just that our demented president didn't allow many investigations of the 2004 to 2014 period to even begin, did he?

    Vasa Wednesday, 05 December 2018 04:11 PM

    Any election according to the constituition has to be held under a legal government and not a junta or illegal govt.

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