Removing power of dissolution seeks to cannibalize Constitution: Counsel

7 December 2018 03:29 am - 13     - {{hitsCtrl.values.hits}}


President’s Counsel Sanjeeva Jayawardena in his submission stated that what the Petitioners invoke to the Court is to distort the Constitution virtually to cannibalize it and to take away the check and balance by removing the power of dissolution of Parliament by the President.

Counsel Jayawardena appearing for Intervenient Petitioner Prof. G.L.Peiris of the Sri Lanka Podujana Peramuna (SLPP) made his submission before the Supreme Court Bench of seven judges on the fundamental rights petition against the declaration of dissolution of Parliament by President.

Ten fundamental rights petitions against the declaration of dissolution of Parliament came up before the Bench Comprising Chief Justice Nalin Perera, Justices Buwaneka Aluwihare, Sisira J de Abrew, Priyantha Jayawardena, Prasanna S. Jayawardena, Vijith K. Malalgoda and Murdu Fernando.

President’s Counsel Jayawardena continuing his submission said they are doing so by invoking merely a proviso and to ignore main substantive Articles 62(2) and 33(2)(C ) of the Constitution which goes to substantiate the power to President to dissolve Parliament.

Petitioners wrongfully advocated to the cannibalization of the Constitution and virtually extracting the teeth of power of the President engaging in the process of surgical transplant of mere proviso in a complete different Chapter of the Constitution and transpose that proviso artificially to a different Chapter of the Constitution, he said.

It also makes a mockery of the sovereign right of the people vested in the President to use the process of dissolution in a fit case by as check and balance of Parliament, he stated.

This is important in a situation where there is a complete breakdown of Parliamentary function as well as irresolvable impasse and a total breakdown of governance which ultimately affects the people of the country and constituency, he added.

Only way to resolve to resolve the crisis is to re-impose the franchise of the people by directing the conduct of a general election for the governance can duly resume otherwise ultimately the people not the politicians who are affected, and the people can be made to suffer the breakdown of governance, he said.

There were 10 fundamental rights petition filed against the declaration of dissolution of Parliament by the President. Five sought to intervene to counter the main petitions.

Petitions seek a declaration that proclamation of dissolving Parliament infringes the fundamental rights.

They ask the Court for a declaration that the decisions and/or directions in the proclamation is null and void ab initio (ineffective from the beginning) 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.

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 - 13

  • Dallas Friday, 07 December 2018 04:11 AM

    For all UNPers JVPers( same ), if the decision comes that dissolution is legal pls do not say that supreme court is bias.Will be hard for some one to challenge the objective argument in this articleAlso how can going to an election break a fundamental right of people because the people get to decide it finally

    Tuan Friday, 07 December 2018 04:58 AM

    It's acceptable to exercise the president's authority when the parliamentary functions are broken down. My question is which joker tried to disrupt the parliament when it was running without a problem....

    Arjuna silva Friday, 07 December 2018 06:43 AM

    What if the president is a moron, who will do the checks and balances there, as per mr jayawardena,'s argument a complete break down of parliment possible? Can all 225 members go insane as oppose to one person (president) going insane.

    RuwanL Friday, 07 December 2018 07:19 AM

    Amendment to the constitution should be done for the benefit of the country! It also should keep the checks and balances as long as we have an executive president who is elected! If the president selects a Prime Minister then he should be able to remove him because the head of the cabinet is the president. The President should be able to work with the PM and if he cant then he should be able to change him. According to the constitution the PM is not selected or proposed be the parliament.

    Indika Friday, 07 December 2018 07:28 AM

    We wouldn't have come this far if we had subjected the flawed 19th amendment to judicial review when it was enacted.

    Chithra Friday, 07 December 2018 07:32 AM

    DM: you guys do a great job with your legal reporting. In contrast, The Island makes a hotchpotch out of it.

    Sammy Friday, 07 December 2018 07:48 AM

    What about too much power of the President to cannibalise the Constituion and the democratically elected Parliament and what about checks and balances on the President?

    cheers Friday, 07 December 2018 07:55 AM

    Judiciary we are all waiting to hear the good news going for an election. Do not make decisions for the sake of doing and the entire country and the citizens needs to be protected without any divisions one country , one people and national security is the utmost importance, so hopefully today's decision will go to the people to elect their leaders and the president did the right thing as per the constitution

    Raj Friday, 07 December 2018 08:08 AM

    How can a parliament exercise checks and balances on president, if he can dissolve a parliament at any time he wants? What we mostly need is checks and balances on president as he had unlimited powers and not by the president on parliament.

    S.P.Ramkunar Friday, 07 December 2018 12:05 PM

    Without considering 19th amendment dissolving parliament also cannibalizing and head hunting of democracy and constitution.

    Hubert Friday, 07 December 2018 12:31 PM

    Nonsense checks and balances means President should not have the power to dissolve at will Removing Power of dissolution is in line with the fixed term of the parliament an it is democratic

    Syntax error Friday, 07 December 2018 01:33 PM

    All the mess you shall overcome with an artificial intelligence leadership, I guess.

    suren Friday, 07 December 2018 02:27 PM

    MS has cannibalized democracy, parliament, constitution and the will of the people by acting outside of the constitution.As per 19A MS does not have the power to dissolve parliament prior to 4.5 years.SO where does the question of cannibalizing the constitution

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